Is an environmental assessment required? November 15, 2012

Approval for undertaking Section 5(1) of the Environmental Assessment Act (EAA) states that: Every proponent who wishes to proceed with an undertaking shall apply to the Minister for approval to do so. In order to determine whether or not your client is required to complete an environmental assessment you have to look at: who is doing it (proponent), and what they are proposing to do (undertaking). 2

Who is a proponent? A “proponent” is a person who, (a) carries out or proposes to carry out an undertaking, or (b)is the owner or person having charge, management or control of an undertaking 3

Who is included in “person”? Person includes a municipality, Her Majesty in right of Ontario, a Crown agency within the meaning of the Crown Agency Act, a public body, a partnership, an unincorporated joint venture and an unincorporated association. Crown agency means a board, commission, railway, public utility, university, manufactory, company or agency, owned, controlled or operated by Her Majesty in right of Ontario, or by the Government of Ontario, or under the authority of the Legislature or the Lieutenant Governor in Council. Public Body is defined in section 3 of Regulation 334 as: Algonquin Forestry Authority Conservation Authorities Colleges and universities Development corporations Ontario Energy Board Ontario Northland Transportation Commission Ontario Telephone Development Corporation Ontario Transportation Development Corp. Toronto Area Transit Operating Authority Ontario Clean Water Agency Ontario Infrastructure and Lands Corporation Ontario Transportation Capital Corporation 4

What is an undertaking? undertaking is defined as: (a)an enterprise or activity or a proposal, plan or program in respect of an enterprise or activity by or on behalf of Her Majesty in right of Ontario, by a public body or public bodies or by a municipality or municipalities, (b) a major commercial or business enterprise or activity or a proposal, plan or program in respect of a major commercial or business enterprise or activity of a person or persons specifically designated by a regulation, or (c) an enterprise or activity or a proposal, plan or program in respect of an enterprise or activity of a person or persons, who enters into a voluntary agreement for that undertaking. usually (a) will apply to your client. 5

Exemptions from s. 5 of the EAA There are some exemptions from s. 5 of the EAA: Reg. 334 – ss. 4 and 6 Declaration Orders Exempting Regulations 6

Exemptions from s. 5 of the EAA Reg An undertaking, whether constructed or started before or after the coming into force of the relevant provisions of the Act, for the construction or start of which the approval of the Minister to proceed was not required is exempt with respect to its operation and retirement from the provisions of section 5 of the Act requiring the proponent not to proceed with the undertaking and from section 12.2 of the Act. The EAA came into force in 1976 so this will be the relevant date for most undertakings but not all Exempt with respect to operation and retirement only. Have to look at whether there have been changes/additions made to the undertaking since the applicable provisions of the EAA came into force that would have been subject to EA when made as the exemption may no longer apply. 7

Exemptions from s. 5 of the EAA Reg. 334 s. 6(1) - undertakings carried out by the following ministries are exempt: (a) the Minister of Agriculture, Food and Rural Affairs; (b) the Attorney General; (c) the Minister of Community and Social Services; (d) the Minister of Community Safety and Correctional Services; (e) the Minister of Education; (f) the Minister of Health and Long-Term Care; (g) Revoked: O. Reg. 196/12, s. 3. (h) the Minister of Finance; (i) the Minister of Labour; (j) the Minister of Municipal Affairs and Housing; (k) the Minister of Consumer Services; and (l) the Minister of Training, Colleges and Universities exemption is subject to s. 7 8

Exemptions from s. 5 of the EAA Limited exemption for undertakings carried out by agents of the Crown in s. 6(2): 6(2) All undertakings and classes of undertakings by or on behalf of Her Majesty in right of Ontario and carried out by an agent of Her Majesty in right of Ontario who is not, (a) a Minister of the Crown; (b) acting on behalf of a Minister of the Crown; or (c) defined as a public body are exempt from section 5 of the Act Generally exempts the day-to-day activities/operations of an agent of the Crown. Where the proposed undertaking is not part of the mandate and/or is not within the normal routine activities and operations of the Crown Agency then you should seriously consider whether or not the Crown Agency is acting on behalf of a Minister of the Crown ((b) above) and is therefore not exempt. Exemption is subject to s. 7 9

Limitation on the exemptions in s. 6 The exemptions in s. 6(1) and (2) are limited by s. 7: Despite section 6, an undertaking carried out by the Minister of Infrastructure on behalf of or at the request of, (a) a Minister of the Crown named in section 6; (b) an agent of the Crown exempted by section 6, that would be subject to the Act but for section 6 is not exempt from the Act. For example – if it is a “public work” and Infrastructure Ontario is carrying out the undertaking then it is not exempt regardless of which ministry or agency they are carrying out the undertaking for. 10

Exemptions from s. 5 of the EAA Declaration Orders Exemption for specific undertaking or class of undertakings from all or certain requirements of the EAA (s.3.2) Minister considers that it is in the public interest, having regard to purpose of Act and weighing it against interference caused by application of Act Can impose conditions on the exemption Can vary from simple conditions, to an entirely new process Minister may make the Order with LGIC approval Were also once called exemption orders MOE EA branch has binders of copies of a lot of the declaration orders that have been granted 11

Exemptions from s. 5 of the EAA Exempting Regulation Undertakings or classes of undertakings can be exempted from some or all of the requirements of the EAA by way of regulation conditions can be placed on the exemption a different assessment process can be established through conditions Historical exempting regulations can be found on e-laws 12

Link to the EBR Environmental assessment approvals are not posted on the EBR ToR and EA not a prescribed instrument (may change) MOE maintains an EA website Declaration Orders are deemed to be a regulation for the purposes of EBR and are posted as such s. 16 of O. Reg. 73/94 Exempting regulation Posted on the EBR and Regulatory Registry unless exception applies 13

“Types” of EA There are generally three “types” of EA: Individual EA Terms of Reference and Environmental Assessment Class EA Streamlined process Various ministries have an approved Class EA (ie. Ministry of Infrastructure, Ministry of Natural Resources) Must be the proponent of the Class EA and the undertaking as they are currently written. Waste, Electricity and Transit EA process Similar to a Class EA process Process is set out in the regulation (Transit) or the guide incorporated in the regulation (waste and electricity) Public participation is a fundamental element of each process 14