Environmental Assessment

General Information

• Environmental Assessment Act
• What does the Environmental Assessment Act Apply to?
• Environmental assessment program areas
• How do people get involved in an environmental assessment?
• Mediation
• Appeals
• Compliance and monitoring
• Federal-Provincial environmental assessment coordination
• Duties, powers and obligations
• Environmental Bill of Rights
  

Environmental Assessment Act

Ontario’s Environmental Assessment Act (EAA) came into force in 1976 and was amended in 1997. It was Canada’s first piece of environmental assessment legislation.


Key features of the EAA are:

• broad definition of the environment
• terms of reference
• mandatory public consultation
• referral to mediation
• formal recognition of class environmental assessments
• deficiency statements
• harmonization
• focused EA hearings
• Deadlines Regulation

Principles

There are a number of key EA principles that can assist proponents in preparing a better quality EA submission. These include:

• Identifying and comparing a reasonable range of alternatives
• Demonstrating a decision-making process that is:
• Accountable
• Logical
• Traceable
• Consulting with affected parties early in the planning process
• Identifying and considering issues
• Considering all aspects of the environment
• Conducting a rational and systematic evaluation of environmental effects
• Providing clear and complete documentation
• Carrying out monitoring, follow-up and compliance

The EAA prohibits a proponent from proceeding with or implementing an undertaking and obtaining approvals under other legislation without obtaining EAA approval first. Approval under the EAA does not preclude the need for proponents to obtain other required approvals under other legislation administered by the ministry (e.g., Environmental Protection Act, Ontario Water Resources Act, Pesticides Act, Safe Drinking Water Act, Clean Water Act) and other government agencies. Specific approvals may be required for various components of a project and may include, but are not limited to watercrossings, stormwater management facilities, fisheries, etc.

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What does the Environmental Assessment Act apply to?

Environmental Assessment Act (EAA) applies to public sector proponents proposing to carry out large scale infrastructure projects. The EAA does not apply to most private sector proponents, unless they are designated by regulation.

Public sector proponents

Public sector proponents include:

• provincial ministries and agencies such as the Ministry of Natural Resources, Ontario Realty Corporation
• municipalities such as regional municipalities, counties, cities, towns
• public bodies, defined by regulation such as Conservation Authorities, Metrolinx

Projects often proposed by public sector proponents may include public roads and highways, transit facilities, waste management facilities, water and wastewater works, resource management and flood protection works.

Private sector proponents

Private sector proponents may include:

• private companies such as waste management companies, commercial energy providers
• individuals
• non-government organizations

Unless designated by regulation or a proponent voluntarily agrees to comply with the EAA, the EAA does not apply to private sector proponents.

Both public and private sector proponents of most smaller and medium scale waste management, natural gas, transmission and waterpower projects are subject to the EAA under the Waste Management Projects Regulation (O. Reg. 101/07), the Electricity Projects Regulation (O. Reg. 116/01), the Class EA for Minor Transmission Facilities and the Class EA for WaterPower Projects respectively. Larger scale projects are subject to an individual EA process.

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Environmental assessment program areas

Ontario's environmental assessment (EA) program has four distinct program areas:

1. Environmental Assessments (EAs)

EAs are prepared for large scale complex projects with the potential for significant environmental effects. An EA application consists of a terms of reference and an EA.

A terms of reference is the work plan for how an EA will be prepared. The EA documents the results of a proponent's planning and decision-making process. The EA includes the proponent's identification and evaluation of alternatives, their environmental effects, impact management measures, and record of consultation.

2. Streamlined EAs

There are some groups or classes of projects that are carried out routinely and have predictable and environmental effects that can be readily managed. These types of projects are subject to the EAA but can benefit from a more streamlined EA process. In Ontario, proponents can follow a class EA process or an environmental screening or assessment process outlined in a regulation depending on the type of project proposed. Currently, Ontario has 10 Class EAs and three streamlined EA processes.

3. Declaration Orders

The Minister of the Environment may, with Cabinet's approval, make a Declaration Order that changes or removes some or all EAA requirements for proponents who are subject to the EAA. As part of the Declaration Order, the Minister may impose conditions to ensure that the environment will be protected.

4. Designation Regulations/Voluntary Agreements

The Minister may make a recommendation to Cabinet that a regulation be made requiring a proponent, who is not subject to the EAA, to comply with the requirements of the EAA. If a regulation is made, the proponent must prepare and submit an EA.

Proponents who are not subject to the EAA may also enter into a voluntary agreement with the Director of the Environmental Assessment and Approvals Branch to comply with the requirements of the EAA. In these cases, proponents agree to prepare and submit an EA.

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How do people get involved in an environmental assessment?

Consultation is a key component of EA practice and is a mandatory requirement in Ontario’s EA legislation. The Environmental Assessment Act (EAA) requires proponents to consult with persons that may be interested in a proposed project. Consultation enables potentially significant issues to be identified early.

Proponents must consult with persons who have an interest in the proposed project:

• during the preparation of a terms of reference (ToR)
• during the preparation of an EA
• during the preparation of a class EA
• during the planning of a class EA project
• during the planning of an electricity, waste management or transit project following an environmental screening or assessment process
• by making available for public/government review the documentation prepared for projects following a streamlined EA process

Proponents must record how they consulted with the public and government agencies, identify the issues that were raised, and show how these issues and concerns were considered.

The Ministry of the Environment must consult with persons who have an interest in a proposed project:

• after a proponent submits a ToR
• after a proponent submits an EA
• after the Ministry of the Environment completes its review of the EA
• after a proponent submits a proposed class EA
• when there is a proposal to make a designating regulation
• when there is a proposal to make a Declaration Order
• where there may be the potential to infringe on Aboriginal or treaty rights

Mechanism for consultation on regulations and Declaration Orders is through the Environmental Bill of Rights (EBR).

All comments received by the Ministry of the Environment during public comment periods are considered by the Minister of the Environment (or delegate) before making a decision about a proposed project.

There are also many opportunities for the public and other interested persons to participate in the EA process:

• during the preparation of a ToR, EA or class EA
• after a proponent submits a ToR and/or EA by reviewing and providing comments on the documentation submitted
• during the planning of a class EA project; electricity, waste management or transit project following an environmental screening or assessment process
• by reviewing and commenting on documentation prepared by a proponent for projects following a streamlined EA process

The public is encouraged to get involved in the EA process, as early as possible to identify issues and concerns specific to a proposed project, before irreversible decisions are made.

Aboriginal consultation

Consultation with potentially affected Aboriginal communities is required. Proponents should prepare a list of Aboriginal communities that are potentially affected by or interested in an undertaking. In doing so, the proponent shall contact the appropriate organizations (Ministry of Aboriginal Affairs, Indian and Northern Affairs Canada) to identify which Aboriginal communities should be contacted about the project.

The proponent should discuss with Aboriginal peoples how to prevent or mitigate any potential adverse effects the project may have on Aboriginal interests.

The Crown may have a duty to consult with Aboriginal communities in order to satisfy the Crown's responsibilities concerning potential adverse impacts of undertakings on asserted or established Aboriginal or treaty rights. In this event, the approach to consultation will vary depending on the specifics of each proposed undertaking.

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Mediation

Mediation is an option to address contentious issues at any point during the environmental assessment (EA) process as a more formal next step to follow when other informal attempts are not successful in resolving a dispute. While not all disputes are amenable to mediation, when properly approached, it can strengthen a proponent's public consultation process, increase trust and accountability amongst participants, and facilitate a timelier EA process.

Mediation refers to a range of techniques used to resolve disputes with the assistance of a neutral third party (the mediator). A mediator can help disputants achieve a mutually acceptable solution to the identified issues or concerns.  The mediator cannot impose a settlement; rather it is the disputants who must agree to the solution.  In the EA process, mediation is a voluntary and confidential dispute resolution process that can happen at any time.

In Ontario, the Environmental Assessment Act (EAA) allows for mediation. Mediation may be either self-directed or referred.

Self-directed Mediation

Self-directed Mediation is done voluntarily by the proponent and other disputants at any time in the EA process. Typically, the ministry does not get involved but can provide information/assistance about obtaining the right mediator. The Minister will consider the results of Self-directed Mediation when making a decision.

Referred Mediation

Referred Mediation is when the Minister or delegate decides to refer matters to mediation if he or she thinks it is appropriate to do so. There are three points in the EA process where the Minister can refer matters to mediation:

• making a decision on the terms of reference
• making a decision on the EA or class EA
• making a decision on requests for Part II Orders

There are also two points at which the Director of the Environmental Assessment and Approvals Branch may refer matters to mediation:

• making a decision on elevation requests for electricity projects
• making a decision on elevation requests for waste projects

The disputants may agree on a mediator or the Minister or delegate may select a mediator. The Minister may appoint members of the Environmental Review Tribunal to be the mediator.

In referred mediation, the EAA requires that the Minister or delegate must consider the mediator’s report in making a decision. The EAA also requires that the mediator’s report is made public after the Minister or delegate has made a decision or earlier if everyone agrees.

The mediation process must be completed within 60 days unless the timeline is extended by the Minister or delegate.

The ministry has a code of practice on using mediation in Ontario’s EA process.

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Appeals

There may be circumstances when, despite everyone’s best efforts, there are issues or concerns that cannot be resolved between the proponent and the persons who raised the issue or with a decision made by the Minister or delegate. In Ontario, the Environmental Assessment Act (EAA) provides a number of mechanisms for the public to resolve outstanding issues and concerns.

Environmental assessments

For terms of references (ToRs), which is the first part of an application for EAA approval, there are no mechanisms to appeal a Minister’s decision. For the second part of the EAA application, which is the proponent’s submission of the environmental assessment (EA) or class EA document, the mechanism to resolve outstanding issues and concerns is the referral to a hearing.

Once an EA or class EA document is submitted for review and the ministry has published its Review, any person may request that some or all matters relating to the EA be referred to the Environmental Review Tribunal for a hearing and decision. All requests for a hearing must be made in writing to the Minister and must include reasons for the request. The Minister has absolute discretion on whether to refer matters to a hearing for a decision.

A hearing may also be heard by a Joint Board, established under the authority of the Consolidated Hearings Act, in order to consolidate the requirements for multiple hearings before different tribunals (such as an EAA matter before the Environmental Review Tribunal and a Planning Act matter before the Ontario Municipal Board) on matters related to the same undertaking.

More detailed information refer to the Environmental Review Tribunal website and Code of Practice: Preparing and Reviewing Environmental Assessments in Ontario.

Streamlined EAs

For projects following an approved class EA, the mechanism to resolve outstanding issues and concerns is the request for a Part II Order. A Part II Order is an order issued by the Minister or delegate that makes a class EA project or undertaking subject to the full provisions under Part II of the EAA. This means that proponents must prepare and submit an EA, including a ToR, to the ministry for a decision. This was formerly known as a "bump-up".

Requests for Part II Orders can be made by any interested person during the public comment period following the proponent's issuance of a Notice of Completion of their environmental assessment documentation.

For projects following an Environmental Screening Process (ESP) (e.g., under O. Reg. 116/01 and O. Reg. 101/07), the mechanism to resolve outstanding issues and concerns is the request for an elevation. If a request to elevate a project is granted, it makes a project or undertaking subject to the full provisions under Part II of the EAA. This means that proponents must prepare and submit an EA, including a ToR, to the ministry for a decision.

During the mandatory public comment period for reports prepared under the ESP, any interested person may make a written request to the Director of the Environmental Assessment and Approvals Branch to elevate a project.

For projects following the ESP under the Electricity Projects Regulation (O.Reg. 116/01), requests may also be made to the Minister to review the Director's decision on an elevation request.

For projects following the ESP under the Waste Management Projects Regulation (O.Reg. 101/07), there are no provisions for the Minister to review the Director's decision on an elevation request.

For proponents with projects following the process under the transit regulation (O. Reg. 231/08), objections about negative impacts to a matter of provincial importance or which impact on an Aboriginal or treaty right may be made to the Minister. The Minister will determine whether the project can proceed or if further study is required. If additional study is undertaken and the Minister is not satisfied that the matter has been addressed, then the Minister may require the proponent to prepare an individual EA.

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Compliance and monitoring

Monitoring is not specifically required in the Environmental Assessment Act (EAA). Compliance with approvals issued under the EAA is an important component of the environmental assessment (EA) program. The ministry is committed to ensuring that proponents comply with commitments they have made in their EA and with conditions of their EA approval. To that end, the ministry developed a strategy for monitoring proponent compliance. There are two components to the ministry’s EA compliance strategy:

• compliance monitoring; and
• effects monitoring

Compliance monitoring

Compliance monitoring is an assessment of whether an undertaking has been constructed, implemented and/or operated in accordance with the commitments made in the EA and the conditions of EAA approval.  The EA will need to provide a strategy that sets out how and when all commitments made in the EA will be fulfilled and how the proponent will report to the ministry about compliance.

In the EA the proponent will have to make a comprehensive list of all commitments made by the proponent during the preparation of the EA, including:

• impact management measures
• additional works and studies to be carried out
• monitoring and reporting
• public consultation and contingency planning
• documentation and correspondence

The EA must include a monitoring framework that considers all phases of a proposed undertaking (e.g., planning, detail design, construction, operation, closure and decommissioning). The monitoring framework must include provisions for annual compliance monitoring reports to be submitted to the ministry to demonstrate compliance.

Effects monitoring

Effects monitoring consists of activities carried out by the proponent after approval of the undertaking. Effects monitoring is used to verify the expected environmental effects and to determine if additional impact management measures are required.

Where warranted, the ministry may require proponents to conduct and report on effects monitoring activities, including but not limited to:

• continuous emission monitoring
• routine ambient air quality monitoring
• stack sampling
• terrestrial and/or aquatic monitoring
• pre-construction and post construction monitoring

The ministry and other government agencies may also require proponents to monitor the effectiveness of proposed impact management measures. Reports on effects may also be required by the Ministry and other agencies related to effects monitoring.

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Federal-Provincial environmental assessment coordination

Undertakings by the federal government are not subject to Ontario’s Environmental Assessment Act (EAA). The Canadian Environmental Assessment Act (CEAA) is the federal statute for conducting federal environmental assessments (EAs). The federal EA process applies whenever a federal authority has a specified decision-making responsibility in relation to a project - whether as a proponent proposing a project; a land administrator; a source of funding; or, as a regulator issuing a licence, permit or approval.

The CEAA is administered by the Canadian Environmental Assessment Agency (Agency). For additional information about the federal EA process, refer to the Agency’s website.

Ontario shares EA responsibility with the federal government and supports the need for harmonization. On November 1, 2004, the federal Minister of the Environment and the provincial Minister of the Environment signed an agreement on environmental assessment cooperation.

The Canada-Ontario Agreement establishes administrative mechanisms and guides coordination for projects subject to both federal and provincial EA requirements. The Agreement commits Canada and Ontario to coordinate the EA process whenever projects are subject to review by both jurisdictions.

The Agreement maintains the current level of environmental standards and the legislative and decision-making responsibilities of both governments. While projects requiring both provincial and federal EA approvals will still require separate approvals, effective communication will be provided between parties with clear roles and responsibilities. Decisions will also be based on the same body of information and there will be an ability to coordinate the timing of announcements related to a proposed project.

Federal-Provincial coordination is:

• a cooperative, common sense approach to coordinate two EA processes
• where both governments’ EA legislation is applied
• an approach to obtain the type and quality of information needed to meet federal and provincial EA requirements
• where each government makes its own decisions but coordinates timing

Federal-Provincial coordination is not:

• the use of one piece of legislation to satisfy both federal and provincial requirements
• the use of the “lowest common denominator” to meet EA obligations
• likely to be full integration of processes in lock-step at each decision point, but it will be as close as it can be
• a process to consolidate and integrate all other provincial and federal approvals that may be required

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Duties, powers and obligations

There are several decisions that must be made at different points in the EA process. Some of these decisions are made by the Minister of the Environment; the Minister of the Environment with the concurrence of Cabinet; the Director of Environmental Assessment and Approvals Branch.

Minister's duties and powers

Decisions

• terms of reference
• class EA bump-ups/Part II Order requests
• review of Director’s decisions – electricity projects elevation requests
• waste management projects elevation requests
• Transit project objections (O. Reg 231/08)  
• deny Declaration Orders
• deny designation requests

Other

• appoint Directors to exercise powers under the Environmental Assessment Act (EAA)
• refer matters to mediation before making a decision
• direct the Environmental Review Tribunal to hold public hearings on an EA or matters relating to an EA
• issue policy guidelines that the Environmental Review Tribunal shall consider

Minister's duties and powers with Cabinet approval

Decisions

• EAs
• class EAs

Recommendations to Cabinet

• making a Declaration Order
• making a designation regulation

EAAB Director's powers and obligations

Decisions

• electricity projects elevation requests (O. Reg. 116/01)
• waste management projects elevation requests (O. Reg. 101/07)
• requests for an EA under the Forest Management Class EA

Other

• set requirements that proponents must meet, e.g., meeting EA notice requirements
• extend the deadline for a ministry Review
• issue EA deficiency statement
• provide public notice for completion of ministry Review
• enter into voluntary agreements with private sector proponents

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Environmental Bill of Rights

In 1994, the Environmental Bill of Rights (EBR) took effect and the people of Ontario received an important tool to help them protect and restore the environment. The Environmental Registry was established to provide for more effective consultation on proposed government policies, legislation and regulations. Under the EBR, proposed Declaration Orders and designation regulations under the Environmental Assessment Act are considered to be regulations and are generally required to be posted for public comment and decision on the Environmental Registry. Posting may not be required if there are no environmental effects associated with a proposal or in cases of emergency. Follow the link to Environmental Registry Site Map.

Environmental assessments (EAs) and terms of reference proposals including class EAs are not required to be posted on the Environmental Registry. These proposals and decisions are posted separately on the ministry’s environmental assessment website along with designations and declarations.

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