The environmental commissioner shows why the powers Doug Ford just eliminated are so important

ANALYSIS: In her final annual report, Dianne Saxe highlighted a power that her office had granted to ordinary Ontarians. That power will now disappear thanks to the Tories, writes John Michael McGrath
By John Michael McGrath - Published on November 22, 2018
Dianne Saxe at a press conference
Dianne Saxe, for now the province’s environmental commissioner, delivered her annual report last week at Queen’s Park.

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Dianne Saxe, who is still for now the Environmental Commissioner of Ontario, has a decent sense of timing.

Saxe released her office’s annual report on environmental protection last Tuesday, just days before the Progressive Conservatives announced that they would close her office and hand some, but not all, of its duties to the auditor general.

The commissioner’s office — initially created in 1993 as part of the Environmental Bill of Rights introduced by the NDP government of the day — will retain most of its current powers and obligations but under the umbrella of the auditor general’s office. For example, Saxe just issued a blistering report about the government’s lack of climate policy; her successor will still be required to issue an annual report on climate change and will have the same editorial independence the office enjoys today, at least according to the letter of the law.

That independence has been important: Saxe’s predecessor, Gord Miller, used the power of the commissioner’s office to advocate for broad changes in policy from an increased focus on protecting agricultural land to changes to provincial planning rules to direct more money to transit services. The government can choose to ignore the commissioner’s advice, but the combination of a big megaphone and legislated independence has produced results: the Liberals did, eventually, make changes to the planning rules to allow municipalities to use development charges to fund transit.

One of the chapters in Saxe’s latest report, however, is especially relevant given the government’s Bill 57, the legislation accompanying the fall economic statement. Under the current Environmental Bill of Rights — that is, until the Bill 57 makes its way through the legislature and receives royal assent — any two Ontario residents can apply to the commissioner’s office and ask it to review any law, regulation, or decision by the government if they believe that it’s necessary to protect the environment.

Saxe’s latest report emphasizes the power that this right has to influence provincial policymaking. Take one case highlighted in the report: a public application asked the government to develop policies that emphasized the health of agricultural soils. Following a report from the commissioner’s office, the Ministry of Agriculture, Food and Rural Affairs did just that. That’s just one example of good-government reforms working as intended.

So it’s significant that Bill 57 effectively strips Ontarians of this right. Instead of appealing to the environmental commissioner or to the auditor general who’s inheriting her duties, appeals under the Environmental Bill of Rights will now go directly to the Minister of Environment, Conservation and Parks (currently Rod Phillips).

This is a problem. It’s true that appeals to the environmental commissioner could always be denied by the ministries they involved, but the commissioner was explicitly empowered to hold the government’s feet to the fire and report as to whether she thought its response to appeals was reasonable. That role will now be played by the ministry itself.

But whichever ministry staffers handle these requests, and however well-intentioned they may be, they’ll still be government employees. Unlike the commissioner or the auditor, they’ve got no statutory independence from the government and no right to speak out publicly should the government break its own rules. This is exactly why, when they were in opposition, the Tories favoured strong accountability officers to investigate and oversee the Liberals.

It’s an inescapable conflict of interest. Even if it wasn’t, Bill 57 still fails to spell out some pretty important details. For example: Will the environment minister be obligated to report every year on the results of public appeals, as the commissioner currently is? Bill 57 says the auditor general inherits all of the old commissioner’s reporting duties, but public appeals won’t go through that office. In the worst-case scenario, such appeals could simply disappear into the bowels of government, leaving the public with the province’s badly broken freedom-of-information system to rely on — and little else.

The good news is that the solution is relatively straightforward: the government can amend Bill 57 so that the appeals process now goes to the auditor general’s office instead of to the environment ministry. That would respect the original intent of the Environmental Bill of Rights and separate oversight from the government.

The NDP may demand just such a change when Bill 57 reaches the committee stage. It’s standard practice for the governing party to shoot down opposition amendments, but the Tories, if presented with this one, should give it serious thought. If they don’t, that will tell the public something significant — and troubling — about how they want environmental law to work as long as they’re in power.

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