The costs of hiding environmental information

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For citizens and NGOs who want to challenge environmental decisions, the biggest obstacle is usually obtaining information about the potential environmental effects of a decision or project. In the 1990s, the Ontario government passed the Environmental Bill of Rights which was supposed to make access to environmental information easier. As a result of this Act, we now have a public registry where potential decisions that may adversely affect the environment are posted for review by the public. Quebec, the Yukon and the Northwest Territories also have similar legislation, and a federal Environmental Bill of Rights was tabled, but not passed in the House of Commons in June 2010.

Decades into the Environmental Bill of Rights experiment, getting information about potentially environmentally damaging activities is still extremely difficult. Citizen suit or appeal provisions under the Environmental Bill of Rights and other statutes remain difficult to use because the public does not have access to the proof required to make their case. By the time most groups gain access to government records on environmental decisions, the damage they seek to prevent has already occurred.

Why does it take so long to gain access? Some years ago in B.C., there was a finding that government discriminated against environmental groups requesting information in comparison to other groups. They were charged higher fees and their requests were delayed longer. It is not certain whether this is also the case in Ontario, but the Environmental Commissioner of Ontario, an independent body which oversees the Environmental Bill of Rights, audited how the Ontario government handled information requests in 2001 and found that unreasonable practices causing unnecessary delays and higher costs were common and systemic.

In Ontario, ministries subject to the Environmental Bill of Rights routinely ignore the requirement to disclose compliance approval applications upon request, or interpret those requirements very narrowly. Details of potentially destructive applications are not posted in the registry.

In an age of electronic documents, you would expect that ministries like Transportation, Environment and Natural Resources would have online databases containing approvals, environmental assessments and other materials. However, it is still the case that a member of the public may have to make an appointment and go to Toronto to view documents in a binder that cover the details of applications many kilometres away. In other cases, access is denied and a freedom of information request is required even for information covered by the Environmental Bill of Rights. More general access to information laws like the Ontario Freedom of Information and Privacy Act results in a lengthy and time-consuming process which often takes years.

For activists, these obstacles are not insurmountable but a lot of advance planning is required to address environmental issues and access information. Keeping up with correspondence from information requests, tracking down documents and appealing is time consuming and often costly.

Federal and provincial governments are currently promoting the benefits of streamlining environmental decisions, but largely ignoring the benefits of streamlining public access to information related to those same decisions for environmental groups. As environmental approvals are sped up, the pace at which information on harmful projects becomes available will lag farther and farther behind.

Note: Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

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