Bud Wildman, David Balsillie, Marty Donkevoort

Crown Forest Sustainability Act

By Bud Wildman, David Balsillie, Marty Donkevoort
The first line of the Crown Forest Sustainability Act sets the direction: “…to manage Crown forests to meet social, economic and environmental needs of present and future generations.” Listen to the story learn about how the act got put into place.

The Crown Forest Sustainability Act (CFSA), passed in 1994, brought new thinking to the way Ontario’s forests are managed. Up to the 1990s, Ontario’s Crown forests (forests on publicly owned land) were thought of mostly as a commodity. Protecting the forests’ waters, air quality, wildlife, recreation and tourism use and aboriginal rights, while considered, took a back seat. It’s an important point, because Ontario has more than 71 million hectares of forest, and 90 per cent of this is Crown forest. The CSFA put environmental considerations into forest management. It came into being after years of hard work. Much of it was done by C. J. (Bud) Wildman, the Minister of Natural Resources and Minister Responsible for Native Affairs from October 1990 to February 1993. He worked closely with Assistant Deputy Minister David Balsillie and Policy Advisor Marty Donkevoort. Background Between 1965 and 1994, the average yearly area logged in Ontario had gone up more than 50 per cent, to nearly 210,000 hectares. During that time period, the actual timber harvested on Crown land more than doubled from 10 million cubic metres of wood cut from an area of 1,000 hectares of forest, to nearly 21 million cubic metres from 2,100 hectares. Worse, the use of clearcutting kept growing. In the 1970s, about 70 per cent of Ontario’s forest harvests were clearcut. By the 1990s this jumped to 91 per cent. Clearly, this wasn’t sustainable. As unthinkable as it may seem, if soxmething didn't change, Ontario could eventually run out of harvestable, renewable forests. Previous ministers and governments had considered this problem with varying interest and attention, but the mind-set was to put the short term needs of forest companies for product — trees to be cut — before protection or renewal and long term interests. Bud Wildman and the MNR reform When Wildman took office as minister, Ontario’s forests were regulated by 28 forest management agreements, covering 70 per cent of Crown forests. He represented the Northern Ontario riding of Algoma for the New Democratic Party (NDP), knew the forests and the forestry industry well. He was determined from the day of his appointment to bring change to the Natural Resources ministry and the way it managed forests, to make sustainability a priority that would have to be considered in every decision. The concept of ‘sustainable development’ was recent; the phrase had been coined only in 1987, in a United Nations report called Our Common Future or the Brundtland Report, which firmly placed environmental issues on the world’s political agenda. It was important that everyone understood where Ontario was going, and that the industry understood that sustainability was ultimately better for its bottom line. The MNR staff was highly professional and had some of the most experienced forestry experts in the world, but under the rules at the time, the forest industry (not the ministry) was responsible for making sure that forests were being regenerated. Since the Crown, not the industry, actually owned the forests, the industry’s priority was to get permission to harvest as many trees as possible. The mindset of the ministry staff, and virtually all ministers up to this time, was to follow the rules and make tree-cutting, not sustainability, the priority. Wildman wanted to change this. There weren’t enough trees being regenerated. In many of the unregenerated forests, ‘weeds’ like birch and poplar trees were growing. Altering the tree species affects the type of insects and plant life in the forests, as well as the soil, the water, and ultimately the fish and all other wildlife. This not only affects the forests, but also the biodiversity, fish and wildlife habitats, recreation, tourism, spiritual and heritage values of our forests. Wildman felt that Ontario had to move to a holistic approach to forest management, taking all of these values and interests into account. He knew there were a lot of mid-level staff and field workers in his ministry who shared his concerns. They would support figuring out better ways to protect Ontario’s Crown forests. He also knew he needed to act fast, because changing the MNR and its forestry practices would take a long time (it did take nearly the whole term of the NDP government) and there would likely be unforeseen obstacles. The unforeseen obstacle came quickly when the NDP government, elected in September 1990, soon discovered it was broke. Wildman was told he wouldn’t have enough money for a major forestry audit— Ontario’s first. This was important because the Ministry assessments of the state of our forests were out-of-date. So despite the lack of cash, Wildman and his team found a way to do the audit anyway, through a comprehensive program, known as the Sustainable Forestry Initiative. The Crown Forest Sustainability Act - Now The Act was finally passed in 1994 (last updated in 2003). It sets detailed rules for how Crown forests are to be managed, in terms of access, maintenance, renewal and planning — rules that are binding on the MNR and everyone else. It incorporated the majority of the recommendations of the Class Environmental Assessment on Forest Management and covers the entire province but primarily affects the North, where most of Ontario’s Crown forest is located. The result is a system that has everyone thinking more holistically about forests. The CFSA and the talks that preceded it also involved more detailed discussions with Ontario’s First Nations than had taken place in the past — a dialogue that is still evolving. Today, thanks to the CFSA, there is a more clear, explicit idea of what is expected — the limits to harvesting Crown forests, when it’s appropriate to allow development and roads and when it’s not, and most importantly, the need to make sure that forests that are harvested are properly regenerated. Although disagreements still come up over issues (such as road building and development), the Act allows them to be considered during the planning stage, so they can be considered with sustainability in mind. Thinking has changed across Canada about forestry. In 2010, nine environmental groups signed the historic Canadian Boreal Forest Agreement, aimed at working together. There are still ups and downs — environmentalists and loggers hit an impasse over this agreement in 2013. But Ontario’s Crown Forest Sustainability Act set the trend for the new way of looking at forests as a legacy worth sustaining. Wildman and his colleagues worried that the Crown Forest Sustainability Act would not survive after the government changed hands. But it has changed hands several times and the law is still there. Ontario’s thinking about sustainability has changed too.
David Peterson, Mark Rudolph, Jan Whitelaw

The Peterson Years

By David Peterson, Mark Rudolph, Jan Whitelaw
The 1980s was a decade of great change for environmentalism — around the world and very much so in Ontario. This became particularly evident after June 26, 1985, the day David Peterson was sworn in as Ontario’s 20th premier, leading the first Ontario Liberal government in 42 years.

For the next two years, Peterson led a minority government at Queen’s Park, under an unprecedented Accord reached with the opposition New Democratic Party. The Liberals actually had fewer seats (48 Liberal to 52 Conservative) than the Progressive Conservatives who had held power, but they managed to form a government with support from the NDP (who had 25 seats) under the accord, and took office with an ambitious program for environmental change. By mid-1985 the environment had already become a top-of-mind issue for Ontarians. In the spring election campaign that led to his premiership, a spill of toxic PCBs from a truck on a northern Ontario road had become a major talking point. It escalated when a pregnant woman in a car behind the truck expressed concern; the Progressive Conservative environment minister quipped that she should not worry unless she was “a rat” licking the highway. The public was not amused and it became a significant election issue. Ontario’s Environment — Under New Management Peterson appointed Jim Bradley (MPP for St. Catharines, a seat he still holds), as Minister of the Environment. He also hired staff members who were committed to moving fast on the environmental issues of the day, including Mark Rudolph, David Oved and Gary Gallon. In his own office, Peterson hired Jan Whitelaw as a senior policy advisor. Mark Rudolph had worked with the Liberals in opposition at Queen’s Park and as Chief of Staff to the federal environment minister (Charles Caccia) in Ottawa. Shortly after Rudolph joined Peterson’s government, he became Bradley’s chief of staff at the Ministry of the Environment. He worked closely with Gallon (who passed away in 2003), Bradley’s Senior Policy Advisor, also a Liberal staff member and a founder of Greenpeace. The office team was rounded out by David Oved, a former journalist who became Bradley’s press secretary, and Julia Langer who was the Junior Policy Advisor. To say that there was good chemistry among the staff is perhaps an understatement — Rudolph and Whitelaw later married, had three boys and they still work together in the private sector on environmental issues. Changes in the Environment When Peterson came to power, some Ontarians were surprised at the speed of change in the environment file. As Peterson notes, for decades the Ontario Liberals were a small-c conservative party. He credits his predecessor, Stuart Smith (Liberal Party leader from 1976 to 1982), with moving the party forward, in part by hiring people like Rudolph and Gallon to work in the opposition. To deliver their election promise of change, Peterson and Bradley moved fast. The budget for Ministry of the Environment more than doubled, from $300 million per year under the previous Progressive Conservative government to more than $700 million (by comparison, Ontario’s 2013-14 budget estimate for the Ministry of the Environment is $495 million). Their staffers found that in addition to dealing with toxic spills, they had a ready-made list of big environmental issues to contend with right away. At the top of the list was acid rain (rain that turned acidic when combined with sulphur dioxide and nitrogen oxides). These two chemicals spewed from Ontario Hydro coal-burning power plants, Inco’s Sudbury nickel smelter and the tailpipes of cars and trucks across Ontario. Acid rain was killing lakes and trees ,threatened human health and had become a continent-sized pollution problem. Determined to solve the issue, Peterson gave Bradley the okay to act quickly and bring in Countdown Acid Rain, an aggressive pollution reduction program. (The acid rain story is told in more detail elsewhere in this Beginnings series.) Vale Corp. (Inco’s successor in Sudbury), credits acid rain controls for giving the company the conditions to cut pollution by more than 90 per cent and make a profit by doing so. Taking on the tough environmental issues In the 1980s, Rudolph, Whitelaw, Gallon and others had to work tirelessly and seamlessly to negotiate with the polluters as their mandate from Peterson and Bradley was to hold firm to protect the environment Within six months of holding office, Peterson, Bradley and their team proclaimed a Spills Bill that could deal with incidents like the PCB spill (it had been passed by the previous government but never proclaimed as law) and took the steps that led to the world’s first Blue Box recycling program across Ontario. The Peterson government also dealt with contentious issues that concerned people across Ontario, including a noxious pollution flowing into Lake Superior from a pulp and paper plant (then owned by Kimberly-Clark) at Terrace Bay, and pressure to log the old growth forests in Temagami, right next to a provincial park. They also implemented MISA (the Municipal/Industrial Strategy for Abatement – an industrial waterways clean-up program, Lifelines (a municipal water and sewage infrastructure enhancement program), an improved Parks Policy Book, and the start of the creation of the Rouge Park. Nevertheless, the environmental philosophy of Rudolph, Whitelaw, Gallon and others — with backing by Peterson and Bradley — was to look at the bigger picture. It’s a philosophy that’s second nature to anyone who thinks seriously about the environment today, but it represented new thinking in the 80s. They didn’t get everything done — for example, in opposition the Liberals had pushed for an environmental bill of rights (under which the Environmental Commissioner’s office was eventually established), but they never moved forward with the legislation during their time in office from 1985 to 1990. This was part of the “tradeoff” they undertook as they looked at the “bigger picture”. Today, Peterson calls what his government achieved on the environment simply “doing a good job.” And Bradley, the longest serving MPP now at Queen’s Park (as of 2013), is still on the job, serving as environment minister again since 2011.
Wendy Cook, Colin Isaacs, Derek Stephenson

Blue Box Recycling

By Wendy Cook, Colin Isaacs, Derek Stephenson
Every day, in cities and towns around the world, people step up to the curb with their Blue Boxes full of glass, cans, papers, plastic and other material for recycling. Listen to how Ontarians Wendy Cook, Colin Issacs and Derek Stephenson brought it to fruition.

The Blue Box recycling concept has been a huge success for the environment — and it all started in Ontario, more than a quarter century ago. Many people had a hand in getting recycling started in this province; three people who were intimately involved were Wendy Cook, Colin Isaacs, and Derek Stephenson.

They said no one would do it

Recycling was an idea that many experts said would never catch on. It was associated with hard times or shortages — for example, during World War II, Canadians were encouraged to save scraps of metal, rubber and paper (as well as plastics, which were still relatively new). In better economic times, it just seemed easier to throw things away. Industries did little to encourage recycling, usually because the market prices for recycled materials were too low to make recycling worthwhile. Plus cities and towns across Ontario had ample landfill and dump space. When Ontario's environmental movement began to gather steam in the early 1970s, today’s concerns regarding resource depletion, energy conservation, and climate change were not well understood by the general public. Nevertheless, for many people, throwing everything away simply seemed like the wrong thing to do. Accordingly, environmentalists came up with a practical waste management hierarchy, called the Three Rs — Reduce, Reuse, Recycle. One of the few exceptions to concerns about being wasteful at that time was Ontario’s system for handling glass soft drink bottles. To ensure that these bottles were returned and reused, consumers paid a deposit when they bought soft drinks in a glass bottle. The deposit money was returned to the consumer when bottles were brought back to the store (somewhat similar to today’s system in which beer, wine and liquor bottles are returned to The Beer Store). But this system started breaking down as different types of containers, such as large plastic bottles and steel cans, became more popular. The soft drink companies and retailers considered it inconvenient and expensive to put more deposits on more types of containers. A decision would have to be made. Ontarians could continue throwing everything into the landfills and be wasteful, or they could pay deposits on all kinds of materials, which would be complicated, expensive and hard to track. Some environmentalists thought of a third idea: these materials could be collected at curbside and RECYCLED! Many experts in both government and private sector said recycling would never work. The prevailing wisdom among professional waste management experts was that people at home and at work would not want to go to the trouble of sorting their own garbage. With this thought in mind, Ontario’s Ministry of the Environment planned to build its own mechanical garbage sorting facility. The idea was that this machinery would sort all the garbage into waste or recycling, and Ontarians could continue to simply throw everything away. Stephenson, Isaacs, Cook and other like-minded environmentalists thought this would be too expensive, would result in high levels of contamination in the recycled materials, and — perhaps most importantly — would not educate people about the need to make better use of our resources nor actively involve them in the solution. They also realized that they could not simply argue that recycling would work; they had to show it could be done.

Blue Boxes are born

In 1974, Stephenson and McGinnis put a small plan into action. They did pilot programs in several areas, including Toronto’s Beaches neighbourhood and the Canadian Forces Base at Borden. These programs had a very high participation rate. At one site, they collected so much recycled material that they bent the frame on one of the trucks. During the 1,500-household Kitchener pilot program that followed, they decided to distribute boxes in which homeowners could put their recyclables. At the time, the manufacturer only had blue coloured boxes, and so only blue boxes were provided to the home owners. Right away, participation was 85 per cent. Pretty soon, people who didn't get Blue Boxes started asking for them, and the program was expanded to all of Kitchener. In 1981, the Minister of the Environment announced funding for municipalities to start blue box programs. After Mississauga joined Kitchener with its own blue box program in 1986, recycling took off, expanding to Toronto, across Ontario and to pilot programs in 16 cities around the world by the end of the 1980s. Even by the end of 1988, a million households in Ontario were recycling. Today, more than 95 per cent of Ontario households have access to blue boxes.

What happens to the collected materials?

Garbage collection in Ontario is managed by municipalities, which either employ their own staff, contract collection to a private company, or combine both methods (as is done in Toronto). Collection trucks are often now equipped to take different types of materials in separate compartments — there’s one for plastics and metal, one for paper products, and so on. The trucks take their haul to sorting centres, where they are processed (further segregated, compressed and baled). Organic (compostable) materials are usually collected in separate trucks and taken to composting facilities. From the sorting centres, the recyclable materials are marketed to companies that can reuse them. Today’s paper industry, for example, uses large amounts of recycled paper. Currently, Ontario’s Blue Box program is overseen by the Waste Diversion Organization, a stand-alone government agency. Stewardship Ontario (a not-for-profit agency funded by Ontario-based brand owners, first importers or manufacturers of the products and packaging materials) manages the industry-funding component of the programs. In addition to operating the Blue Box financing program, Stewardship Ontario also manages Orange Drop, a recycling and safe disposal program for hazardous or special waste. The result of more than a generation of effort on recycling is a big success — a made-in-Ontario solution that has grown hand-in-hand with the environmental movement and became a recycling model for the rest of the world.
Rob Leverty, Cecil Louis and Ron Reid

Protecting the Niagara Escarpment

By Rob Leverty, Cecil Louis and Ron Reid
From Queenston on the Niagara River to Tobermory on the tip of the Bruce Peninsula, Ontario is blessed with the Niagara Escarpment. Rob, Cecil and Ron tell stories about the struggles to protect the Escarpment from development.

The Niagara Escarpment, a 450 million-year formation that dominates the landscape in the most populated and densely developed part of Canada. It’s a much-loved wonderland — a UNESCO World Biosphere Reserve with abundant forests, farms, wetlands, recreation areas, hiking trails (including the Bruce Trail), historic sites, scenic villages and towns. The Escarpment’s rich ecosystems support 300 bird species, 53 mammals, 36 reptiles and amphibians, 90 fish and 100 varieties of special interest plant life, including 37 types of wild orchids. The Escarpment area is, rich with dolostone, sand, and gravel - the perfect material to quarry for building roads and for construction. In the early 1960s, as southern Ontario was growing, developers and aggregate operators targeted the Escarpment as an ideal source of building material. Meanwhile, Escarpment area farmland was becoming a magnet for residential subdivision development. As these problems escalated, citizens, the provincial government and environmental groups became concerned. Three people caught up in the early struggles to preserve the Niagara Escarpment were Cecil Louis, who was working for the Ontario government as a planner at the Ministry of Municipal Affairs and Housing, Ron Reid, a naturalist on the staff of the Federation of Ontario Naturalists (FON) and Rob Leverty who became the Executive Director of the Coalition on the Niagara Escarpment (CONE), an organization formed by the FON and other concerned environmentalists to protect the Escarpment. The Political Situation in the 1960s and 70s The Ontario government in the 1960s and 1970s (like all Ontario governments since), was seeking to balance explosive growth in southern Ontario with the need to protect and preserve green space, and the Niagara Escarpment was top of mind. In 1967, then-Premier John Robarts commissioned Len Gertler from the University of Waterloo to write a report with recommendations on how to protect the Escarpment. Gertler took an unusual, almost revolutionary approach to planning for the Escarpment. His report came out before environmentalism and ecosystems were household words, yet it recommended protecting large parts of the Escarpment from development, with decisions to be made by an appointed group. This represented new thinking on two levels. Up to the late 1960s land use planning was left largely to local governments, which tended to favour development to expand their tax bases. Gertler called for regional planning that looked at what would be best for the whole province. He implied in his report that a feature like the Niagara Escarpment clearly transcended municipal boundaries, thus requiring provincial level planning. The other element of the new thinking was that the Escarpment should be protected because of its beautiful landscapes. Until then, it was not customary for governments to attach too much value to natural beauty, other than creating an occasional new park. In 1973, the Ontario government, headed by William Davis, who succeeded John Robarts as premier, moved forward with adopting the planning report by passing legislation to protect the Niagara Escarpment – the Niagara Escarpment Planning and Development Act (“the Act”). Premier Davis also set up the 17-member Niagara Escarpment Commission to prepare a Niagara Escarpment Plan, and to decide what development would be allowed in the area. After the Act was passed, the battle to protect the Escarpment began in earnest, and it was long and intense. Developers, aggregate companies, landowners and some municipal governments were up in arms over the restrictions that were put in place under the Act, so they lobbied hard to soften those restrictions as much as possible. This battle lasted over many years, and became one of the biggest public struggles over the environment that ever took place in Ontario. It was constantly in the media and was mentioned all around Ontario. Post-Niagara Escarpment Act The opposition caused by the passing of the Act led to a counter protest by environmentalists at Queen’s Park in 1978, followed by the formation of the CONE. Its matriarch was Lyn MacMillan, and other members included Ron Reid, along with the Canadian Environmental Law Association, the Canadian Nature Federation, Pollution Probe and the citizen-led Foundation for Aggregate Studies. CONE’s first test was to fight the construction of a proposed executive retreat to be built at the Forks of the Credit River on the Escarpment. MacMillan deployed her extensive network of contacts to arrange a meeting with then-Premier Davis. The goal was to persuade him to boost the funding available to buy up ecologically sensitive areas so they could be protected. Premier Davis finally committed $25 million to land protection. . Over the years (before and after the Act became law), all three parties in the Ontario Legislature have officially supported the Escarpment legislation and protection policies The late NDP MPP Mel Swart was particularly supportive of the Escarpment. Other supportive Members of the Ontario Legislative Assembly were Conservative MPP Norm Sterling, Liberal MPP Jim Bradley and NDP MPP Ruth Grier. Sterling, Bradley and Grier also served as Ministers responsible for the Niagara Escarpment Plan. The Niagara Escarpment Today Under the Act, the Niagara Escarpment Plan was approved by Cabinet in 1985, setting out detailed land use policies l. It was t updated in 1990 and again in1995, as required by the Act. The next review will take place in 2015. Today, developers and aggregate companies remain aggressive in their efforts to gain approval for projects in the Niagara Escarpment. It is the job of the Niagara Escarpment Commission to review every application. The Commission typically receives about 550 permit applications each year; it approves about 90 per cent of these, after ensuring that the proposals are in conformity with the policies of the plan, that are designed to keep the Escarpment protected. The result today is a remarkable, environmentally protected area within easy reach of millions of Ontarians and visitors. Every year, some 400,000 visitors come to the Escarpment, thanks to the foresight of the Ontario provincial government, and the consistent support of the many members of the general public acting as part of, or in concert with, Coalition on the Niagara Escarpment.
Dennis Wood, Alan Levy, Heather Mitchell, Clifford Lax

Birth of a Practice: Environmental Lawyer

By Dennis Wood, Alan Levy, Heather Mitchell, Clifford Lax
In the early 1970s, a new legal specialist – the environmental lawyer – was starting to appear on the Ontario scene. Our guests in this story were some of Ontario's first environmental lawyers. Listen to learn about their involvement in environmental law and how it evolved to what it is today.

In the early 1970s, a new legal specialist – the environmental  lawyer – was starting to appear on the Ontario scene. There had been a variety of conservation, sanitation and water protection laws on the books for some time. However, the 70s heralded the introduction of the first dedicated environmental laws designed specifically to address air and water pollutants, noise, wastes, and a wide range of other contaminants. As the body of environmental law began to grow, so did the demand for environmental lawyers.
Until the 1970s, “the practice of environmental law in the private sector was non-existent. There just wasn’t anything to support it.”
Ontario’s Environmental Protection Act was enacted in 1971, followed by the Environmental Assessment Act in 1976, while Ottawa passed the Environmental Contaminants Act in 1975. Each of these new laws, and the regulations made under them, imposed stricter environmental responsibilities on Ontario’s resource companies, manufacturers, utilities and other private and public sector entities. These laws also contained enforcement powers and set fines and other penalties for polluters. However, prosecution was often the ‘last resort’ of the Ministry of Environment. Many of the early enforcement officers were drawn from the very industries they were hired to oversee. While they were able to negotiate some effective pollution reduction programs, the Ministry was not particularly aggressive in prosecuting companies or individuals that did not meet the province’s new environmental standards. Meanwhile, the public was growing more concerned about a host of emerging environmental problems: PCBs, acid rain, hazardous waste, lead smelters, dioxins and furans, mercury pollution, the “death” of Lake Erie, Love Canal … the list went on and on.  As a result, federal and provincial regulators were soon forced to take a more proactive stance in the enforcement of the environmental rules. The Ontario Ministry of the Environment established its own Investigations and Enforcement Branch in 1985 to investigate major spills, hazwaste problems and industrial pollution, and to charge and prosecute those who broke the environmental law. Soon afterwards, a series of complex environmental assessments were launched for major projects proposed by the public sector, Crown corporations and municipalities. These twin developments made both industry and municipalities ‘sit up and pay attention.’ Once they understood the looming legal liabilities, they looked for their own environmental lawyers to explain their regulatory obligations and to defend their legal rights.
“There was a kind of an arc here [in the development of private environmental law practice]. There was the 70s when we were incubating ideas, through the gathering momentum of the early 80s, to the late 80s and early 90s when there was a very active [environmental] practice.” (Law Tape 2, 2:30-3:00)
This new age of environmental law was interrupted temporarily by the economic downturn of the early to mid-1990s and the subsequent governmental response. . Some environmental programs were trimmed by cost-conscious governments in fear that such programs would drive business away. Major assessment hearings were cancelled in response to complaints about the cost and delay of environmental ‘red tape,’ and much of the intervenor funding that had sustained NGO participation was discontinued. While subsequent governments have showed a renewed enthusiasm for environmental initiatives, the 1970s and 80s marked the heyday of legal reform. At the same time, many technical concerns had devolved from lawyers to environmental engineers. These “qualified professionals” could guide clients through the increasingly complex world of environmental approvals, contaminated site remediation and regulatory compliance. Detailed and prescriptive environmental regulations, permit-by-rule systems and class environmental assessment processes spawned a whole new industry of environmental consultants who now handle much of the work that formerly went to law firms. Today, environmental law is firmly established as its own distinctive practice backed by a growing body of case law and precedents, and supported by an ever more complex regime of federal, provincial and municipal regulations, standards and by-laws. A number of Canadian universities offer environmental law programs, including York, Toronto, Dalhousie, Ottawa, Calgary and British Columbia. Both the Canadian and Ontario Bar Associations have established special sections to promote legal reform, professional development and education the areas of environmental, energy and resources law. Each federal, provincial and territorial environmental agency now maintains its own roster of environmental lawyers to handle prosecutions, support compliance, and draft acts, regulations, approvals and orders. For example, the Legal Services Branch of the Ontario Ministry of the Environment currently employs more than 50 lawyers, articling students and paralegals, constituting the largest single team of environmental lawyers in Canada. Most large law firms have environmental specialists on staff, while some lawyers have set up ‘boutique’ environmental law firms that may also cover related disciplines, like Aboriginal, energy, resource development and real estate law.  Finally, a handful of environmental lawyers work with environmental and First Nations groups, residents associations and individuals to advocate regulatory amendments, undertake private prosecutions, and enable client participation in natural resource and land development approval processes.
Dennis Caplice, Victor Rudik, Wayne Scott

Ministry of the Environment: Part One

By Dennis Caplice, Victor Rudik, Wayne Scott
It wasn’t that long ago in Ontario when there was no Ministry of the Environment. But it seems like we’ve moved ahead by light years.

Before the Ministry was created in 1972, pollution control was left to a hodgepodge of municipal and provincial regulations and agencies. Industries’ answer to pollution was to build higher smokestacks and longer outflow pipes to spread their emissions and discharges farther away — out of sight and out of mind, but unfortunately, not out of the environment. Farmers could go into the waste disposal business by renting out land, allowing in dumpsters and covering the garbage with dirt. Sewage treatment plants needed to be upgraded, flood plains needed to be controlled, air quality needed attention. It all needed to be coordinated. There weren’t consistent patterns as to how decisions were made about the environment. For example, it was a major event when then-Premier William Davis stopped construction on Toronto’s Spadina Expressway in 1971, but it was done by Cabinet order (really his own order) — none of the legal challenges brought by neighbourhood groups had worked. It’s not that people were unaware. The idea that something different had to be done in Ontario to deal with the environment began to percolate years before the Ministry came into being and started to do its work. In 1970, George Kerr, who would later become Ontario’s first Environment Minister, referred to polluters as “thieves”. This was strong language at the time. There was still reluctance even consider to tough environmental controls. People in those days spoke about raising their “consciousness”, and this actually started to happen. On April 22, 1970, the world’s first Earth Day, MPPs handed out phosphate-free detergent to people in the street, explaining how it was better for the water. That same day, then-Premier John Robarts (Davis’ predecessor) told Ontarians that the time would come when governments may need to forbid certain types of development if it meant protecting the environment — even if that meant giving up tax revenues. It was controversial. “While I do not relish the idea, I am convinced that we, the province and municipalities, must institute very firm controls in some areas of Ontario,” he warned. This was a bold enough warning to merit front-page coverage in the Toronto Star, which noted that the Premier’s words meant something almost shocking: “Industries might not always be able to establish where they want to.” Yet while demonstrators in Washington, Toronto and around the world marched that day to draw attention to the environment, the legal and governmental mechanisms to act on Robarts’ ideas were still a good two years away. And the tools that we now use — the regulatory and review system, was even farther off. The Ministry of the Environment came to life in 1972, with Kerr as Minister. But it wasn’t until two years later, in the 1974 Throne Speech, that the government announced it was bringing in a new Environmental Assessment Act. This meant that for the first time, there would be a formal way to review the impact of new proposals on our land and water. It fell to senior government officials — the bureaucrats — to make sense of what was then a new, but important way of looking at our surroundings in Ontario. There was resistance — not everyone in government or in industry wanted an Environment Ministry, and even today, some people don’t like environmental assessments — and there was a lot to learn. Officials would visit industries to inspect them and be asked: “Why are you here?” And from the other side, members of the public would ask: “Why aren’t you doing more?” The new Environmental Assessment Act, which became law in 1975, provided the framework for, as it says, “the betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.” As with many effective laws, it draws criticism from both sides — opponents say it slows development and industry and proponents say it could offer more protection. What the Act, and the Ministry, do seek to achieve is to provide the method and the process to act on changing thinking about our environment. There have been significant achievements. For example, in 1994 a Class (comprehensive, across-the-board) Environmental Assessment of timber management led to considerable rethinking about how we manage our Crown forests, putting more focus than before on sustainability. This has led to a wider consensus — and some formal accords — to make our forests more sustainable. Other environmental assessments under the act have tackled waste management, transmission lines and electricity supply. The Ministry, meanwhile also led the way in many areas, with a comprehensive program to combat acid rain, a watershed-wide management plan for Lake Simcoe and its wide-ranging sewage abatement program for municipalities and industries across the province. Is it perfect? Perfection may always be elusive, and there’s still a lot to learn. But it is progress — measurable pollution prevention, real enforcement and a framework for assessing environmental impact. Listen to the stories of the Ministry’s pioneers and how they worked to make Ontario’s Environment Ministry come to life.
Linda McCaffrey, Minoo Khoorshed, Jerry Herlihy

First Lawyers of MOE

By Linda McCaffrey, Minoo Khoorshed, Jerry Herlihy
Our guests talk about environmental cases they were involved in, many of which helped shape Ontario's environmental law.

Ontario's Ministry of the Environment established their legal branch in July, 1972. Linda McCaffrey was hired as a lawyer in October that year and worked with director, Neil Mulvaney, to establish the foundation of the branch. Shortly after, Minoo Khoorshed and Jerry Herlihy joined. In this story, they talked about how and why they became lawyers at the MOE, the cases they were involved in and their views of the legal branch today. As you listen to the story, you may not be familiar with some legal terms. Here are some references that may be able to help: Adjournment: Suspending a legal proceeding to a future time. Arbitration: A method of alternative dispute resolution in which the parties agree to submit their dispute to a neutral person or group for a decision. Civil liability: potential responsibility for payment of damages (as distinguished from criminal liability). Disclosure: The release of documents and other information about a person or entity. Due diligence: A legal defense against conviction or civil liability where the defendant establishes that it took all reasonable steps to prevent committing an offence or causing harm to other persons or their property. IEB: the Ontario Ministry of the Environment's Investigation and Enforcement Branch Motion: In litigation, a formal request to a court for a specific action. Opined: Held or expressed an opinion. Prosecution: The act of pursuing a criminal lawsuit against an offender, or, the party pursuing the criminal prosecution. Liability: A legally enforceable obligation.
Anne Koven, John Cary, Don Huff

Timber Management Class EA

By Anne Koven, John Cary, Don Huff
It cost too much and took far too long, but the Class EA on Timber Management revolutionized the way the Ontario manages its forests. It also taught us important lessons about environmental assessments that changed the hearing process forever.

The three guests invited to tell the story were Anne Koven (who served on the Environmental Assessment Board during the hearing), John Cary (who helped prepare the Ministry of Natural Resources’s case and was a witness) and Don Huff (who represented Forests for Tomorrow).

The Evolution of Environmental Assessment in Ontario

In 1976, a new Ontario law created a process where the potential environmental impacts of a new project could be examined before the first shovel broke ground. The law that created this process is called the Environmental Assessment Act (EAA). Under the process, called an environmental assessment (EA), the proponent of the project outlines potential environmental impacts and actions that would be taken to prevent, mitigate or remedy them; the Ministry provides a response; and Ontario residents can request a public hearing on either the adequacy of the document or whether the undertaking should be approved. In most cases, the Minister then orders the Environmental Assessment Board (the EA Board, which evolved into today's Environmental Review Tribunal), an independent and impartial group of environmental experts responsible for hearing these applications. Today, the Tribunal also hears applications, appeals and proceedings under other provincial environmental legislation. Based on the subsequent assessment and the ruling of the Board, the Minister of the Environment would either approve the proposal (with or without conditions) or refuse to approve it. Under what is known as a Class EA, the assessment process for groups of similar projects with predictable and manageable environmental impacts are streamlined. There are currently 11 Class EAs in effect in Ontario, covering undertakings such as municipal roads, sewage and infrastructure projects, rehabilitation activities at abandoned mine sites, flood and erosion control projects, and minor transmission facilities. The Ministry of Natural Resources' first Class EA was for timber management in Northern Ontario.

MNR’s first Class EA

The Ministry of Natural Resources (MNR) had avoided public scrutiny of its timber management practices through a series of orders exempting them from formal assessment under the EAA. Finally, on December 23, 1985, MNR submitted its draft Class EA for Timber Management on Crown Lands to the MOE for review and approval. This set out the planning and approval process for building access roads, cutting timber and regenerating forests over 385,000 km2 of Crown Land, with the goal of providing “a continuous and predictable supply of wood for Ontario’s forest products industry.” Following MOE’s initial review, MNR revised the Class EA document and re-submitted it in June 1987.
The Class EA process made us examine what MNR had done and made us improve what we were doing, and do all sorts of new things. - John Cary
At the time, public opposition was building against many of MNR’s proposed planning and forestry practices. This came to a head with protests against the Temagami Lake clear cuts and the Red Squirrel logging road. At the same time, a number of interest groups and public agencies were voicing concerns over the spraying of forest pesticides, the extent of allowable clear cuts, and even whether or not the Class EA was the right process for assessing the impacts of the province’s timber management policies. In December 1987, the Minister of the Environment sent MNR’s revised Class EA to hearings before the EA Board in order to ensure “full public participation in the decision-making process.” The Board was tasked with determining, first, whether to accept the Class EA, and second, whether to approve the timber management planning undertaking and, if so, what terms and conditions (if any) should be imposed.

The Hearing

Preliminary meetings were held in January and February 1988, before the main hearings began on May 10th in Thunder Bay. The Board also visited four logging sites to look at timber harvesting operations and reforestation efforts, and organized 15 town hall meetings for northern residents, local businesses and the forest industry to discuss the issues. While dozens of interested groups participated in at least some of the hearing – First Nations were particularly active – a handful were present throughout the entire proceedings: MNR, MOE, Forests for Tomorrow (FFT) (a coalition of the Federation of Ontario Naturalists, the Sierra Club of Ontario, the Temiskaming Environmental Action Committee and the Wildlands League), the Ontario Forest Industry Association, the Ontario Federation of Anglers and Hunters and the Northern Ontario Tourist Outfitters Association. Forests for Tomorrow was concerned that the undertaking was not well suited to a Class EA approval, because the effects of timber management are not “small scale,” “predictable” or “minor.” FFT also argued that MNR could not undertake a full EA because it could not describe the forest environment in great enough detail to accurately assess the impacts, and that the basic issue should have been forest, not timber management. Several intervenors doubted that MNR could be trusted to implement the Class EA in a satisfactory way; they worried that approval of the plan would be equivalent to writing a “blank cheque” to MNR.
Two important issues were restrictions on clear cut size, and the definition of forest management to be a more encompassing, more organic concept. - Anne Koven
Over the 411 hearing days, the Board heard from more than 500 witnesses and amassed 70,000 pages of daily transcripts, more than 2,300 exhibits and tens of thousands of pages of supporting material. The final session concluded on November 12, 1992 in Sudbury, and the Board retired for more than 17 months to write its decision.

The Decision

On April 20, 1994, more than six years after the launch of the hearing process, the EA Board approved MNR’s plan for timber management. In a massive 560-page decision, which included some 115 detailed terms and conditions, the Board concluded that Ontario’s extensive forest resources were to be managed, under careful regulation, as a renewable resource. At the same time, it set conditions to protect certain old growth areas, as well as limits on the size of those areas that could be clearcut. The Board also required MNR to undertake extensive monitoring of industry compliance and report on impact assessment and silvicultural effectiveness. The Class EA for Timber Management on Crown Lands was approved for a nine-year period so that the successes and failures of the timber management planning process – and its evolution into an integrated forest management approach – could be “tested in the forest.” The approval outlined the four-stage process that must be followed in preparing forest management plans, including an assessment of the environmental effects of alternatives, and public and Aboriginal consultation requirements. It also required that MNR bring its revised Timber Management Planning Manual back to the Board for public review and approval.
The decision revolutionized the forest industry, and led almost immediately to the Crown Forest Sustainability Act, which was a completely different philosophical approach to forest management. - Gord Miller
Unfortunately, the interminable timber management hearing left the EA process with a nasty black eye. In its written decision, the Board complained that the “hearing was far too long and far too expensive.” MNR had completed only a small portion of its case when the hearing started – just four of the 17 witness panels – and the whole affair took on an overly legalistic and antagonistic air. As a result, the hearing was delayed for months while MNR completed its witness statements, procedural matters remained unsettled and, when it resumed, the cross-examination seemed endless. Even if everyone had cooperated fully, the hearing would still have lasted at least two years, but the Board complained that “the lawyers seemed more interested in strategies and tactics to fight one another than in concentrating on the evidence.”
The hearing had a deleterious effect on the EA process because it dragged on and on and on and on ... Any politician or any minister of the environment is going ‘EA is radioactive.’ - Don Huff
The scope of the case also put a tremendous strain on the intervenors, several of whom threatened to pull out after the first year if the province didn’t make additional funding available. While the province did increase funding, the Board later concluded in its decision that a “proponent should not have a bottomless pit of money with which to present its case and drag the hearing out, leaving other parties to participate on a shoestring.”

The Future of Forest Management

Despite all the angst, tension and expense, there was finally a set of clear, publicly accessible rules in place to govern forest management in Ontario. In 2003, MOE extended the Class EA for Timber Management, issuing Declaration Order MNR-71, to replace the original 115 terms and conditions with 55 that cover access roads, harvesting, reforestation, pesticide use, forest maintenance and the preparation, and the review and approval of forest management plans. The Declaration Order removed much of the detail from the original Approval on the basis that the Crown Forest Sustainability Act, and its regulated manuals provide “a more rigorous regime” than legislation in place when the Approval was issued in 1994.
Certain public consultation mechanisms that the EA put in place ... are still extant and still working, that provide an opportunity to the local public, the regional public or anybody. - John Cary
Today, the Forest Management Class EA is an “evergreen” Approval: MNR does not have to seek its renewal, but amendments must be made to ensure the Approval remains current. Like many other Class EAs, amendments can be requested at any time by members of the public, the proponent or other parties, and must be approved by Cabinet. This most recent series of amendments to the Class EA were adopted in 2007. In addition, MNR must prepare and submit to MOE a review of the Class EA planning process and its implementation of the conditions in the Approval every five years. The first of these was submitted in June 2009 and the next is due in June 2014. MNR is also required to submit to the Legislature a five-year State of the Forest Report, which was done in 2006 and 2012. However, much of the impact of the Timber Management Class EA decision could ultimately be undone by administrative tinkering that has occurred over the last decade. As part of MNR’s 2012 budget to improve ministry services while cutting costs, the government is considering amendments to the Crown Forest Sustainability Act, 1994. Among these, it could eliminate the requirement for forest management plans, extend forest resource licences indefinitely, and allow unlimited exemptions of forest operations from certain requirements of the Act. Only time will tell what the lasting impact of the landmark Class EA decision released nearly 20 years ago will be.