Last month, Ontario’s Auditor General released a scathing review of the government’s commitment to upholding Ontario Environmental Bill of Rights, or EBR.
In a press statement, the Auditor General said that “transparency and accountability in environmental decision making is how the EBR helps to protect the environment”. At Transparency International Canada, we could not agree more.
In our recent series of Accountable Mining reports, we examined transparency and accountability gaps in environmental assessments, or EAs, in Ontario, British Columbia, and the Yukon Territory. Among the three jurisdictions, we evaluated that risks to Ontario’s EA process have the highest likelihood of occurring, and the highest potential impact on eroding trust in the mining industry, and of environmental and social consequences. In her public statement, the Auditor General echoed a concern of lack transparency leading to undermining public confidence.
Our report found three critical risks for Ontario’s EA process. First, as a root cause of other issues, Ontario is the only Canadian jurisdiction where a holistic EA is not mandatory for private sector projects, including mining. Ontario’s class EA system sets categories of projects by standardised likely impact and leaves it to proponents to self-assess if their project falls into a category. There are holistic individual EAs only if the Minister of the Environment, Conservation and Parks or a minister regulating a class EA may designate it to an individual EA. Alternatively, the proponent may initiate an individual EA voluntarily, which is the most common approach.
As a result, according to a previous Auditor General report in 2018, only eight out of 32 mining operations and related projects have undergone a provincial EA based on voluntary agreements as they were already subject to a federal EA. The lack of holistic EAs means there is no fulsome baseline information about pre-and post-mining conditions at the project-level or cumulatively for these projects.
Second, connected to this risk, we found that there is uncertainty caused by the lack of clear thresholds that trigger an individual EA or the criteria that would lead the government to bump up a project to an individual EA. 'Public interest' is the only known criterion in the legislation for bumping up or designating a project to an individual EA. However, according to the Auditor General’s 2018 report, only two out of 18 mining and quarry projects were bumped up by the ministers based on the public interest between 1976 to 2016, calling into question how useful or well understood this criterion is.
Finally, a key risk that the Auditor General identified in reviewing the EBR, and that we identified in the EA process is lack of public consultation. Our report particularly emphasises weak guidelines and consistency for Indigenous Community consultations. As an example of erosion in trust that weak consultation creates, one Elder told us “Decisions are already made by the time consultation is made ... we stop caring anymore. Nothing can be done to change it.” The Ontario government should be gravely concerned about this breakdown public confidence.
In August, TI Canada participated in the government’s open consultation on improving business and class EAs. We stressed that the current class EA and individual EA system are opaque and lack accountability. We further informed the Ontario government that strengthening public confidence through transparent and accountable processes will minimize uncertainty for business and make Ontario attractive for private sector investment. According to a 2018 study by consultancy firm ERM, 46% of 72 major extractive sector projects they studied globally missed an anticipated project deadline mostly due to issues related to the social licence to operate. Thus, active and early participation of local communities, especially Indigenous communities, will help parties be aware of issues on time, integrate these into the assessment and design and avoid conflicts later in the process.
We are concerned though that the Ontario government is moving in the opposite direction of improving accountability and transparency under the guise of reviving the economy in the wake of COVID-19. At TI Canada, we strongly encourage Premier Ford, Minister of Environment, Conservation & Parks Jeff Yurek and Minister of Energy, Northern Development and Mines Greg Rickford to reconsider this path.
To correct course and increase transparency and accountability in EAs, as well as make a predictable operating environment for business, we recommend the Ontario government take the following steps.
First, requiring EAs for private enterprise with clear thresholds for individual EAs would ease many of the vulnerabilities found in Ontario’s system. If class EAs are going to remain, the government should consider the impacts of a mining project’s comprehensively, not just segmented by activity categories. Additionally, the government should clearly define terms such as “public interest,” used as the main reason for a project’s class assessments to be bumped up to an individual assessment.
Second, to enhance public confidence in ensuring the unbiased assessment of projects, we recommend that the government transferring responsibility for mining promotion to government agencies working with economic development. Additionally, the government should publicly disclose the rationale for EA-related decisions to help agencies demonstrate full and fair consideration of projects.
Finally, on public consultations, much like the Auditor General, we urge the government to improve them in the EA process, most notably for Indigenous Communities. TI Canada believes that this should include the Ontario government adopting Free, Prior, and Informed Consent (FPIC) and ensure EAs abide by the principle.
For more information on TI Canada’s environmental assessment reports, including the Ontario technical report, please visit the reports page here.