As Ontario’s legislature returns for fall session and rules that put the province’s controversial Bill 5 into place roll out, critics say the remaining tools under the Environmental Bill of Rights are being blunted to the point of obsolescence. Gord Miller, a former environmental commissioner of Ontario — a position the Ford government eliminated under the bill of rights in 2018 — said if he were still in his former role, he would be challenging the province over Bill 5, and its efforts to “override the will of 50 years of legislation” written to protect the environment of Ontario. The Ford government has on several occasions introduced new legislation with exemptions from the Environmental Bill of Rights, in particular the requirement for informing the public of policy changes — and Bill 5 is a prime example. Miller, who served as environmental commissioner from 2000 to 2015 and is now chair of the environmental group Earthroots, told The Narwhal he was particularly concerned with the use of special economic zones and replacing the Endangered Species Act with the watered-down Species Conservation Act under Bill 5. In both cases, the public’s ability to participate and become informed of environmental impacts is muted. The office of the premier and Ontario’s Environment Ministry did not respond to requests for an interview or specific questions about the Environmental Bill of Rights by publication time. The Environmental Bill of Rights began as a private members’ bill in the 1990s, at a time when there was growing recognition that the public should have a say in environmental decision-making: the newly elected NDP had long promised to enact the right to a clean environment, Canada had passed its Green Plan and acid rain had been pouring down for two decades. The Environmental Bill of Rights was brought forward as a private members’ bill at a time when environmental issues were gaining increased public attention. Doug Ford’s government has introduced legislation with exemptions from the bill on several occasions. Photo: Christopher Katsarov Luna / The Narwhal The bill came into effect in early 1994 and was considered groundbreaking legislation, designed to give the public a voice in environmental decisions and a means to hold the government accountable. From outlining the Ford government’s plans to remove parcels of land from the protected Greenbelt to allow for development, to its more recent proposal to give portions of Wasaga Beach Provincial Park over to the local municipality, the bill has offered a key resource for the public — but its effectiveness is degrading. If governments of the day can and are choosing to bypass its requirements, does the Environmental Bill of Rights still serve a purpose, or has it lost its bite? A lost opportunity for public feedback A critical component of the Environmental Bill of Rights allows for public participation through the online environmental registry, on which the government is required to post proposals and decisions affecting the environment. The bill also allows for two or more citizens to request that a ministry review a policy or decision, or investigate a potential environmental violation, and it gives the public the right to appeal certain decisions to the Ontario Land Tribunal. The environmental registry is arguably the most powerful tool, as it issues advance notice of environmentally significant decisions and legislation — whether it’s allowing a permit for taking water, a development proposal that risks harming an endangered species or an amendment to mining regulations. It provides an opportunity for a formal chance for feedback on those decisions and, at the very least, makes the public aware of them. Philip Pothen, in-house counsel and Ontario environment program manager for Environmental Defence, said the registry is “one of the most effective tools for the public to be able to shape and dissuade the government from environmentally harmful legislation.” A forested area of the Greenbelt region near the Glen Major Forest, in Durham County, Ont. The environmental registry — part of the bill of rights — informs the public of government proposals and decisions affecting the environment; a post in late 2022 outlining the Ford government’s plans to remove large swaths of the Greenbelt prompted massive public backlash. Photo: Christopher Katsarov Luna / The Narwhal The registry played a crucial role in informing the public of what would come to be known as the Greenbelt scandal. In late 2022, an environmental registry posting outlined the Ford government’s plans to remove 7,400 acres of land from the protected greenspace around the Greater Toronto Area, confirming and explaining in detail what had long been suspected. Ontarians responded en masse, with more than 30,000 comments received in the 30-day submission period after the posting went up. In spite of this, the updated notice states, “No changes were made to the proposal as a result of public consultation.” It was ultimately the public and media’s attention on the proposed harms to the Greenbelt, and the process that led to its opening, that saw the Ford government reverse the decision. “It is not the official environment registry, consultation or submissions to the environment registry that make [the] difference,” Pothen said. “The notice to the public at large … is what enables effective public awareness and organizing around that decision.”But the Ford government has undermined the power of the Environmental Bill of Rights in its use of the environmental registry. Ontario’s auditor general’s 2024 report on the Environmental Bill of Rights found the province passed two bills before the consultation periods listed on the environmental registry had ended, meaning ministries had not fully considered public feedback in their decisions and, “even with full consultation periods, ministries could not always show they considered the public’s feedback when making decisions.” The push to reduce red tape and ease development forward under Bill 5, the Protect Ontario by Unleashing our Economy Act, exempts the redevelopment of Ontario Place from the requirement for posting on the registry. Richard Lindgren, a lawyer with the Canadian Environmental Law Association, was a member of the task force that drafted the bill of rights along with lawyers from the government, environmental and industry groups. He said the exemptions in Bill 5 effectively mean there are “no formal public notice opportunities, public comment opportunities or the right to seek leave to appeal those approvals to the Ontario Land Tribunal.” In practice, this means the redevelopment of Ontario Place can move forward without the usual public oversight afforded under the bill of rights. The province proposed similar exemptions under the new Species Conservation Act, which will replace the Endangered Species Act, significantly watering down protection for at-risk species. Those proposed regulations also state that permits to harm at-risk species, and other decisions related to species listed as threatened or endangered, will not have to be posted on the environmental registry. The public can still request a review or investigation of decisions under the Species Conservation Act, via the Environmental Bill of Rights. But without the environmental registry functioning as intended, “there really is no opportunity for people to have a democratic impact,” Pothen said. A prime example is the proposed changes and impacts to Wasaga Beach Provincial Park, where the Ford government is proposing to transfer a portion of the protected park land to the Town of Wasaga Beach. Doug Ford’s government wants to transfer part of Wasaga Beach’s protected park land to the town — a move that would threaten one of the most important remaining habitats in North America for the piping plover, an at-risk species. Photos: Carlos Osorio / The Narwhal; Flickr “The people don’t know that the piping plover in Wasaga Beach is at dire risk of losing all its protection, provincial park protection, and has already lost its endangered species protection,” Miller explained. Without an independent watchdog, he said, issues like this can fly largely under the radar. A system without a watchdog: life after the environmental commissioner Another significant aspect of the Environmental Bill of Rights was the creation of the environmental commissioner, who reported directly to the Ontario legislature, rather than the government of the day. “When we first drafted the Environmental Bill of Rights, we really wanted an independent environmental watchdog established to help hold the Ontario government accountable for its compliance, or non-compliance, with the [bill],” Lindgren explained. In 2018, as part of Bill 57, Restoring Trust, Transparency and Accountability Act, the Ford government amended the Environmental Bill of Rights, removing the independent role of the environmental commissioner. Those duties now fall to the auditor general’s office, and the Ministry of the Environment. The auditor general’s office has put the province’s environmental record under scrutiny since it took the reins, including in a recent report on the province’s progress on greenhouse gas emissions reductions, released in late September. The report found that “the province’s own projection shows that Ontario will miss its 2030 target. Our review shows that there is a high likelihood that Ontario’s [greenhouse gas] emissions will be even higher than [the Ministry of Environment] projected. This would result in Ontario missing its 2030 target by an even wider margin than projected.” But the auditor general has a much more limited mandate than the environmental commissioner had, according to Tony Morris, conservation policy and campaigns director at Ontario Nature. The former environmental commissioners, of which two people officially held the role aside from Gord Miller, published sweeping reviews and report cards of ministries’ impacts on the environment. Miller explained that the role called for “somebody who is knowledgeable about such things, ecological concepts, ecological systems, to be the person between bad and good decisions of the government and the impact on the public.” The auditor general offers more of a check-and-balance, Miller said, defining whether or not ministries have followed the requirements of legislation, including the Environmental Bill of Rights. “Whereas [the] environmental commissioner would take them to task on the lack of content,” he explained. “I used to say, I am the Lorax. I speak for the trees, for the trees have no tongue,” Miller said He said the removal of the environment commissioner has had a chilling effect on the public’s awareness of the Environmental Bill of Rights and environmental issues more broadly. “The former environmental commissioner’s office did a really excellent job in terms of public outreach and education,” Lindgren said, adding that they had a team of staff to help people navigate issues under the Environmental Bill Rights, to really realize those rights. While Ontarians can still access public notices on the environmental registry, they “have to know it’s there first of all,” Miller said. The Environmental Bill of Rights has remained largely unchanged for the last three decades, and some say it is due for an update to modernize its protections. Photo: Spencer Colby / The Narwhal The first section of the Environmental Bill of Rights lays out that the environment minister is required to educate the public on the bill, and their ability to participate in decisions that pertain to it. But the auditor general’s 2024 report on the Environmental Bill of Rights found the Ford government is “doing little to educate the public about the [bill] even though it has a legal obligation to do so.” Morris said the original intent of the bill has been watered down. “We’ve seen that in the sense of, it seems more performative than it is … actually practically taking input from Ontarians and implementing decisions that reflect that feedback.” Can the Environmental Bill of Rights still fulfill its purpose? The Environmental Bill of Rights has largely remained unchanged over the last 30 years, and Lindgren said it is due for an update. In March 2024, the Law Commission of Ontario published a report with 58 recommendations to modernize the bill. The report recommends expanding it to include the right to a healthy environment, including the duty to consult Indigenous communities, and the right to bring legal action for non-compliance with the bill against the government. Notably, the report calls for the return of the independent environmental commissioner: a role focused on long-term impacts on the environment rather than short-term government objectives, Miller said. Despite the pattern of non-compliance and erosion, the Environmental Bill of Rights has not been rendered completely powerless. For the Asubpeeschoseewagong Netum Anishinabek (Grassy Narrows First Nation), the bill has helped to protect their already fragile ecosystem from further harm — for now. Last December, Ontario’s Ministry of the Environment, Conservation and Parks issued a permit to Great Bear Resources Ltd., a wholly owned subsidiary of Kinross Gold, to allow them to take and release water for an advanced gold exploration program on Grassy Narrows’ territory. The Canadian Environmental Law Association, through its role as an environmental legal aid clinic, represented Grassy Narrows, using the right to appeal decisions to the Ontario Land Tribunal under the Environmental Bill of Rights. The appeal was based on the Ministry of Environment, Conservation and Parks issuing the permit without prior, meaningful consultation and the risk of the process releasing sulphates into the environment upstream of Grassy Narrows. The community feared these sulphates would accelerate the formation of methylmercury, a potent neurotoxin, worsening the mercury contamination crisis that has impacted their traditional territory and practices for decades due to industry. In the appeal, Grassy Narrows successfully argued that no reasonable person would have issued the permit, and that it “could result in significant harm to the environment,” as stated in the Ontario Land Tribunal decision. Grassy Narrows Chief Rudy Turtle marches with protestors in Ottawa in June 2024. The nation used the Environmental Bill of Rights’ right to appeal project decisions to the Ontario Land Tribunal after the Ford government issued a mining permit without prior consultation. Grassy Narrows won the appeal, revoking the permit. Photo: Christopher Katsarov Luna / The Canadian Press Ultimately, on May 1, 2025, through an agreement between Grassy Narrows First Nation, the ministry and Great Bear Resources Ltd., the permit was revoked in its entirety. However, Great Bear Resources Ltd. has already reapplied for similar permits, which pose similar risks. Although the Environmental Bill of Rights allows any Ontarian to appeal, Lindgren bluntly stated, “The practical reality is, if you want leave to appeal to the tribunal, you really need to lawyer up and get great experts.” Without legal guidance and technical expertise, it is difficult to make a successful case to the Ontario Land Tribunal. It’s also possible the Ford government designates a special economic zone, under Bill 5, to fast-track development by bypassing other existing provincial and municipal legislation — including the Environmental Bill of Rights. But that is yet to be seen. Lindgren said the Environmental Bill of Rights “needs to be repealed and replaced by a new — what I call a lean, mean, green — right to sue.” That is, legal recourse, should the government’s decisions affect the public’s right to a healthy environment. 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Does Ontario’s Environmental Bill of Rights still have teeth?
