Ross Howard, David Israelson, Michael Keating

Environmental Journalists

By Ross Howard, David Israelson, Michael Keating

The Journalists

Of all information sources, newspapers have traditionally been the most influential. Their high profile stories coming out early in the day are picked up by radio, television and now Internet news sites. Because of this, they often set the agenda for public and political debates. In the 1970s, rising public interest in environmental issues prompted editors at Canada’s major newspapers and later at some broadcast outlets to create an environmental “beat” on a par with health or education, and reporters were directed to track down and report on the most exciting and often alarming developments in this field. At the Toronto Star where he worked from 1975 to 1984, Ross Howard became one of Canada’s first environment reporters.. For Howard, it was an “amazing time” of transition when pollution was becoming a serious subject of scientific study and public concern rather than simply a series of unconnected stories about irritants like litter and trash, and he specialized in writing about environmental issues for eight years of his journalistic career. When Howard gave up his post in 1984, David Israelson, who worked at the Star from 1983 to 1998, succeeded him, beginning in 1985. Similarly, the Globe and Mail, in response to the high level of public interest, had its own dedicated environmental reporter, Michael Keating, an experienced journalist who covered these issues for the Globe from 1979 to 1988. The Toronto Star and the Globe and Mail were then, and still are, among the most widely read newspapers in Canada. While the Globe sees itself as the authoritative voice of Canadian journalism with a national reach and a political-economic focus, the Star with the highest circulation of any paper in Canada, has long pursued a populist middle-class stance and more aggressive reporting towards selected issues.

Breaking Environmental News

As designated environmental reporters in the 1970s and 80s, Howard, Israelson and Keating played a critical role in conveying information gathered from academics, scientists, governments and non-governmental organizations to the public. Reports, lawsuits, lobbying campaigns, commissions, government announcements, the results of scientific studies and leaked documents all provided breaking news, and the level of public interest was high. In following professional standards of accuracy, fairness and balance, these reporters had to weigh claims and counter-claims made by emerging groups and individuals who wanted their environmental issues covered by the press. The journalists also had to try to assess the risks of pollution problems to public health and the environment, recognizing that in a time of heightened public interest and concern their reporting could influence significantly how issues were perceived and managed. Although none of the three reporters in this session were trained as scientists, their on-the-job education gave them a rich understanding of the science behind environmental issues – the consequences of air and water pollution, the risks of chemicals to human health, or the effects of long-range transportation of acid-rain causing emissions on prized areas such as Muskoka Lakes. During the period when they were writing, many “brave” scientists, as Howard calls them, both inside and outside federal and provincial governments, took the time to explain the complex science behind these issues both on and off the record. This investment in educating reporters was reflected in the high level of sophistication found in news stories about acid rain, dioxin contamination of the Great Lakes and other headline environmental issues of the day.

The Political Hot Seat

Environmental news began to regularly command front page headlines and extensive explanatory stories. With the support of their editors, the three journalists kept environmental issues at the forefront of public awareness, which considerably influenced a sea change in public attitudes: where pollution had once been regarded as the cost of doing business and considered a fair trade-off for economic benefits, a better-informed public became attentive to exposures and risks and losses and consequences and began to demand greater corporate responsibility and government action. The environment became a political hot potato. Almost daily the Ontario Minister of Environment had to be prepared to answer to the press, the public and the provincial Legislature every time a story broke, and the heat proved too warm for many of them. As Keating pointed out in one of his many front page stories, there was a turnover of five Environment Ministers in seven years in Ontario during the years of Progressive Conservative governments. The heat was almost unrelenting but its sources were as diverse as the global environment itself -- an explosion at the Chernobyl nuclear plant in the Ukraine, the chemical leak at Union Carbide in Bhopal, India, a radioactive spill from the Pickering nuclear plant, the discovery of dioxin in herring gull eggs taken from the Great Lakes or maple trees believed to be dying from acidified rain. As the media continued to highlight these stories, the public mood gradually changed from concern to alarm. The Ontario government realized that the environment was more than an engineering problem and began to assert higher protective and preventative standards. Tougher legislation that required greater corporate accountability and costs was directed at specific environmental problems such as acid rain. Enforcement was strengthened to ensure that companies controlled their spills and emissions more effectively. By putting environmental issues on the front page and making them a frequent subject for editorial comment, water-cooler conversation and protest, environmental journalists were instrumental in changing public perceptions of pollution by the early 1980s. These journalists kept the issues high in opinion polls, instigated wide-ranging policy debates and ensured a new degree of political accountability for the state of the environment.

Robert Paehlke, Doug Macdonald and Mark Winfield

Environmental Historians Talk About Ontario’s Environmental History

By Robert Paehlke, Doug Macdonald and Mark Winfield

In this session, Bob, Doug and Mark discuss the political upheavals in Ontario and the influence of environmental activism on governments of different political stripes.

Robert Paehlke, Doug Macdonald and Mark Winfield have all been well-placed observers of, and sometime participants in, Ontario’s environmental history. As educators, they have taught and written about the events and the policies that have shaped Ontario’s environmental path. As well, working for or in association with non-governmental organizations, they have themselves influenced the province’s decision-making process. Robert (Bob) Paehlke is a professor emeritus of Trent University, where in the 1960s as one of a newly-minted group of environmental professors, he taught environment and politics and continued to do so for more than 35 years. In 1971, he founded Canada’s premier environmental magazine, Alternatives, which has been an invaluable source of scientific information and policy discussion ever since. He is also the author of numerous publications on environmental issues including his most recent book, Some Like It Cold: The Politics of Climate Change in Canada. Doug Macdonald has taught environmental policy at the University of Toronto (U of T) for several years as a Senior Lecturer in the School of the Environment. Before coming to U of T, he was the Director of the Canadian Environmental Law Research Foundation from 1982 to 1988, which was renamed the Canadian Institute for Environmental Law and Policy (CIELAP) but is now defunct. He has also written extensively on the need for a strong environmental assessment process in Ontario. Mark Winfield is an associate Professor at York University’s Faculty of Environmental Studies, the first environmental program in Canada. He specializes in environmental policy, sustainable energy and urban sustainability. Before coming to York, he was Program Director at The Pembina Institute from 2001 to 2007, and before that Director of Research for CIELAP. In 2012, his book, Blue-Green Province: The Environment and the Political Economy of Ontario, examining the relationship between environmental policy and the politics and economy of the province, was released. In this session, Bob, Doug and Mark discuss the political upheavals in Ontario and the influence of environmental activism on governments of different political stripes.

The Conservative Years and the Response to Environmental Concerns

In the late 1960s when environmental activism began, Bob Paehlke recalls small groups popping up in every city and town in Canada, and even a minor protest could attract publicity. Then, during the 1970s and early 80s at the same time the environmental movement was gaining strength, the Conservative Party was enjoying a long uninterrupted run of governing the province. The government under Premier Bill Davis responded to growing environmental concerns by establishing the Ministry of Environment in 1971. This was accomplished by piecing together institutions such as the Ontario Water Resources Commission and departments from other Ministries that had responsibility for air, water or land. Also in 1971, Davis broke with the institutional model and, in an act of goodwill towards the nascent environmental momentum and the Stop Spadina Save Our City campaign, cancelled plans for the Spadina Expressway. Spadina was one of six expressways intended to bring suburban commuters to their jobs in downtown Toronto that would have meant the destruction of thousands of homes in the heart of the City. One of the boldest initiatives, though, of the Davis government was the introduction and passage of the Environmental Assessment (EA) Act, which established an innovative planning process for public projects. It was intended to provide for “an integrated consideration at an early stage of the entire complex of environmental effects which might be generated.” It was passed by the Ontario Legislature in 1975 and proclaimed in force in 1976. According to Mark Winfield, the EA Act transformed the Ministry of Environment from a Ministry concerned about pollution and garbage to a Ministry that could pass judgment on the desirability of projects proposed by other Ministries and government agencies such as Ontario Hydro. From an institutional perspective, it was a huge shift that saw the Ministry of Environment’s stature rise within government, from “a patched together Ministry to a Ministry with power.”

The Liberals’ Countdown Acid Rain Program: The Zenith of Activism

In 1985 after Davis’ retirement, although the Conservatives won more seats in the Ontario Parliament by a slim margin, they did not have a majority. Shortly after the election, the New Democratic Party agreed to support the Liberals for two years in return for the implementation of a mutually approved Accord. At this point, the momentum for controlling acid rain had been growing and in 1986 Environment Minister, Jim Bradley, introduced Countdown Acid Rain, an ambitious program that would limit the emissions of Inco and other major sources of sulphur dioxide and nitrogen oxides in the province. Environmental groups, particularly the Coalition on Acid Rain, had been instrumental in galvanizing public support for controls, and the introduction of this program reflected their considerable influence on the political agenda of the day. During the late 1980s and into the early 1990s, with public support still strong and effective groups actively promoting an environmental agenda, the Ministry of Environment led by keen Ministers of Environment enjoyed a period of successful initiatives and policy measures. Many projects were reviewed under the Environmental Assessment Act with the public actively engaged in the planning process. The Ministry of Natural Resources, for example, under the Environmental Assessment for Timber Management was required to submit its plans for forest management to an extensive public review which started in 1985, and a decision to accept the EA with conditions was made by the Environmental Assessment Board in 1994. The Ministry’s enforcement activities were having a systemic impact on the way in which industry managed their environmental impacts. The Investigations and Enforcement Branch was actively bringing polluters to justice, and its successful prosecution of Bata Industries showed that officers and directors could be liable if they did not follow through on their environmental responsibilities.

The Legacy of the NDP

Another election in 1990 brought in the New Democratic Party. Continuing a proactive approach to environmental concerns, Ruth Grier, the Environment Minister, banned incineration and took on the ill-fated task, which the former Liberal government had begun, of finding a site for Toronto’s garbage. The NDP also introduced and passed the Environmental Bill of Rights, which Mark Winfield describes as a part of the NDP legacy that has survived. However, the NDP were presented with tough economic times in the province and the Ministry of Environment, which had seen its funding go steadily up during the Bradley years, was caught in the financial restraints being imposed by the government. This was the beginning of the Ministry’s funding and influence being eroded as successive governments continued to reduce the Ministry’s funding and weaken programs and legislation such as the EA Act that had been put in place by their predecessors. The story of the environment in Ontario is not one of uninterrupted progress, say the historians. There were policy failures such as the Ontario Waste Management Corporation’s unsuccessful search for a hazardous waste site. And, after many of the gains realized in the decades of the 70s, 80s and into the early 90s -- the creation of the Ministry of Environment itself, the passage of strong environmental legislation and the aggressive work of the Investigations and Enforcement Branch -- the province’s once strong environmental performance has been diminished not only by the withdrawal of funding for the Ministry but by policy reversals and deregulation.

John Martin, Mark McKenney

MOE Investigation and Enforcement Branch

By John Martin, Mark McKenney

The SIU demonstrated its effectiveness in 1983 when E. B. Eddy Forest Products spilled thousands of gallons of toxic waste into the Spanish River polluting the river for miles downstream...

After joining the Ontario Water Resources Commission (which later became part of the Ministry of Environment) as an engineer in 1970, John Martin went back to law school and in 1978 became the first full-time articling student in the Ministry of Environment’s Legal Services Branch. That year, a landmark decision was made by the Supreme Court of Canada with far-reaching consequences for the way in which the Ministry of Environment dealt with polluters. This was the case of R. v. Sault Ste. Marie (City). It began when the City of Sault Ste. Marie hired Cherokee Disposal Limited to manage the City’s landfill site. As a result of Cherokee’s poor operation of the site, leachate from the landfill entered the St. Mary’s River and polluted it. The Ministry of Environment charged both the City of Sault Ste. Marie and Cherokee Disposal under the Ontario Water Resources Act. The judge found that the City was not responsible for the contractor’s polluting activities. An appeal of this decision went all the way to the Supreme Court of Canada where the Supreme Court introduced for the first time the concept of strict liability, a new category of offence. Strict liability made it possible for someone charged with violating environmental laws to argue that they had taken all reasonable care to prevent the violation, thereby practicing “due diligence.” The Sault Ste. Marie decision meant companies could now argue that they had taken reasonable precautions to avoid polluting. These precautions included putting an environmental management system in place, training employees to use the system and supervising employees to ensure the system was being followed. These were actions that could show that a company had taken all reasonable care, in effect exercised due diligence, and was, therefore, not guilty in law. Since Ministry of Environment staff had not received training in the legal issues surrounding evidence collection that could counter this argument, the Ministry of Environment began to lose cases to companies using this defence.

Strengthening the Ministry’s Training and Investigative Capacity

To address this problem, Harry Parrott, the Conservative Environment Minister from 1978 to 1981, in consultation with the long-time director of the Ministry’s Legal Services Branch, Neil Mulvaney, decided that the Ministry had to train its people in these legal issues. They initiated a two week course at the Ministry of the Solicitor General’s Police College in Aylmer, Ontario. At Aylmer, all Ministry abatement staff were trained to understand not only their legal powers but how to collect evidence and how to build a case against polluters by including evidence that would counter possible defences. This decision marked the beginning of the Ministry’s commitment to making its staff more effective in the enforcement of Ontario’s environmental laws. As part of the Ministry’s commitment, in 1979 a Special Investigations Unit (SIU) was set up, and Mark McKenney was hired as one of the unit’s original 13 officers. The SIU’s job was to investigate serious offences, and, when they were convinced that environmental laws had been broken, they wrote a Crown Brief to support laying charges and sent it to the Legal Services Branch. Then, if the Legal Services Branch decided that there was sufficient evidence to support charges, a prosecution would be launched. The SIU demonstrated its effectiveness in 1983 when E. B. Eddy Forest Products spilled thousands of gallons of toxic waste into the Spanish River polluting the river for miles downstream. Ministry of Environment investigators laid six charges, including charges not only against the company itself but also against two of its officials. As a result of the national publicity surrounding this case and the growing need for more Ministry staff to properly conduct investigations, Andy Brandt, a Conservative MPP from Sarnia who was Environment Minister from 1983 until 1985, became interested in enhancing environmental enforcement. Brandt decided to ask the government for funding to create a special enforcement branch that would strengthen the Ministry’s investigative capabilities. A provincial election and a change of government interrupted this plan, but in 1985 the newly-elected Liberal Environment Minister, James Bradley, convinced his Cabinet colleagues to approve a new Investigations and Enforcement Branch (IEB) of 120 people, about double the size being considered by the outgoing government.

The Successful Establishment of the Investigations and Enforcement Branch

In 1985,the Ministry of Environment put in place the legendary IEB under the supervision of a former Metro police officer, Alex Douglas. A new era of aggressive enforcement was set in motion as Ministry of Environment investigators teamed up with environmental staff scientists to crack down on pollution offences. The IEB’s work was grounded in the intensive training that staff received at the Police College in Aylmer. Their primary job was to investigate violations of the Ministry’s major Acts in place at that time – the Environmental Protection Act, the Ontario Water Resources Act, and the Pesticides Act – and the numerous regulations established under those Acts. In this heyday of environmental enforcement, the IEB conducted approximately 1200 investigations each year and laid charges in 500 or 600 cases. The officers were so well-trained and their investigations so thorough that in those first years, Ministry lawyers were winning approximately 95 per cent of their cases. Plea settlements became common as lawyers for companies who had been investigated by the IEB and charged by the Ministry advised their clients that a trial would be a costly proposition with a significant probability of being convicted. An example of one of the IEB’s most significant cases was Bata Industries in 1992. In this case, company officers, for the first time in Canada, were charged, convicted and fined for their responsibility, as officers, in not ensuring that leaking barrels of chemical waste on company property were cleaned up. This case was instrumental in showing the personal liability of members of company boards of directors and their duty of care in dealing with their environmental responsibilities on behalf of the company. Another example was the case of Bakelite Thermosets, a Belleville plant that manufactured plastic resins. Bakelite had been polluting the air and water with phenols for many years and sending falsified reports to the Ministry of Environment. Investigators from the IEB found that the Ministry was also notifying the company when they were coming to inspect the plant so that operations could be brought up to acceptable standards before they arrived. A technician from the plant co-operated with the Ministry in its investigation and became the first person to successfully obtain remedy under the whistle blower provisions of the Environmental Protection Act. The company eventually pleaded guilty and was fined $100,000.

Harry Dahme, Stephen Garrod and John Willms

The First Environmental Lawyers in Private Practice

By Harry Dahme, Stephen Garrod and John Willms

How do you become an environmental lawyer when there are few environmental laws and almost no courses to prepare you?

How do you become an environmental lawyer when there are few environmental laws and almost no courses to prepare you? Driven by a desire to protect the environment, John Willms, Stephen Garrod and Harry Dahme were three of the first in Ontario to practice what is now known as environmental law. In 1970, they had to make it up for themselves. The first tentative steps were taken by some law professors and their students at the University of Toronto (U of T). To support the newly-formed Pollution Probe and emerging environmental groups who were fielding calls from concerned citizens, they decided to establish a public interest law clinic. They thought perhaps the courts could be used to remedy the complaints that were coming in fast and furiously as concern for the environmental took hold. To this end, they created the Canadian Environmental Law Association (CELA), and in late 1971 a young lawyer named David Estrin became its first full-time lawyer. John Willms, who had been at Osgoode Hall law school when the idea of an environmental law clinic began to percolate, was drafted into service by his former classmates as CELA’s Treasurer and member of their Executive Committee. As he became increasingly more involved with CELA’s legal work in a volunteer capacity, environmental issues started to become part of his private practice at the firm of Greenspan and Vaughan. Now in 2014 the firm, which evolved to Willms & Shier, is the largest environmental law firm in Canada. Stephen Garrod started as a student at Osgoode Hall Law School in 1974, enrolled in York University’s Masters of Environmental Studies program in 1975 and became the prototype for and the first graduate of York’s Joint LLB/MES program in 1978. Fresh out of law school, he found his first articling job with David Estrin after David had left CELA and opened his own practice, the first in Canada dedicated solely to environmental issues. After a few years of honing his legal skills with David, Stephen left to start his own practice in environmental law, in Guelph, which continues today as Garrod Pickfield LLP. Similarly, Harry Dahme, who was weighing whether he could make a greater impact through politics or law, chose law and, after graduating from Osgoode Hall Law School in 1982, replaced Garrod as David Estrin’s associate. A few years later, Estrin and Dahme joined forces with Gowlings, one of Canada’s biggest law firms, where in 2014 they celebrated 30 years of working together in the practice of environmental law. Over the course of the forty years practicing environmental law, the three of them have seen significant changes in the legal landscape. In the beginning, their clients were local groups and environmental organizations fighting to protect communities from contamination or unwanted projects. Sometimes they got paid in homemade wine or chickens and sometimes they didn’t get paid at all. But those were heady days in which representing a citizens’ group might lead to significant progress – stopping toxic waste dumping, preserving agricultural lands or reforming the way the Ministry of Environment approved projects, particularly landfill sites. At that time, the Ministry’s certificates of approval, which were supposed to set conditions for how pollutants would be managed, were often like “elevator licences,” according to John Willms. However, the hard-fought battles that communities waged in courts or hearings led to tightening up the way in which landfills around the province were designed and monitored. The first change in the practice of environmental law occurred when many of the clients who had cut their teeth as environmental leaders ran for municipal office. Once elected as councillors, they hired the same lawyers that had helped them in their fights with the Ministry. In some cases where municipalities were looking for landfills or to site new projects, the lawyers found themselves hired to represent the proponents of projects rather than the opponents, always with the goal of ensuring that projects met the highest standards for community consultation and environmental protection. In another important development that influenced the evolving practice of environmental law, the 1980s saw the introduction in Ontario of new acts and regulations with far-reaching effects. The Environmental Assessment Act required detailed plans and reviews of projects before they could go ahead. If the projects were contentious, hearings might be held. At the same time, in 1988 the Intervenor Funding Project Act gave citizens’ groups the financial ability to hire environmental lawyers. Instead of time in court, environmental lawyers more often found themselves at lengthy hearings before boards such as the Environmental Assessment Board or the Ontario Energy Board where arguments over major project proposals could be heard and resolved. The years between 1985 and 1990 were a boom time and many large Bay Street firms set up departments that offered expertise in environmental law. In the 1990s, however, the provincial structure that allowed for environmental reviews and hearings began to be dismantled. The Environmental Assessment Act was revised so that few projects were subject to hearings and the Intervenor Funding Project Act was not renewed. The practice of environmental law shifted again, and environmental lawyers today find themselves engaged in cases revolving around corporate due diligence, the rehabilitation of contaminated sites, proposals for energy projects, pits and quarries and environmental planning.

Michael Cochrane, John Macnamara, Peter Victor

Task Force for the Environmental Bill of Rights

By Michael Cochrane, John Macnamara, Peter Victor

In the 1980s, environmental activists suspected that their concerns would be resolved faster if they had better access to the justice system. The Environmental Bill of Rights was designed to provide that.

In the 1980s, environmental activists believed that their concerns would be resolved faster if they could initiate their own legal actions. Lawyers at the Canadian Environmental Law Association proposed a law called the Environmental Bill of Rights that would give citizens greater access to the justice system. Over the years, many opposition politicians in the Ontario Legislature introduced a version of this bill, but none were passed. Finally, in the 1990 election, the New Democratic Party made passing the bill part of their election platform. After they were elected, an Environmental Bill of Rights (EBR) that included some of the original features of these first bills was passed. The EBR has since become one of the province’s signature pieces of environmental legislation. It is important to recognize both the people who helped create the EBR and those who helped implement it. In 1990, the then-Minister of Environment, Ruth Grier, appointed a task force that included representatives of the environmental and business communities and of the government. They were asked to develop the EBR based on a number of principles:

the public's right to a healthy environment;
the enforcement of this right through improved access to the courts and/or tribunals, including an enhanced right to sue polluters;
increased public participation in environmental decision-making by government;
increased government responsibility and accountability for the environment;
greater protection for employees who "blow the whistle" on polluting employers.

Michael Cochrane, who was a lawyer with the Ministry of the Attorney General, in his role as chairman of the Task Force on the Environmental Bill of Rights, led the Task Force through a series of meetings and often difficult discussions. The EBR Task Force included Paul Muldoon from Pollution Probe and Rick Lindgren from the Canadian Environmental Law Association; Sally Marin, a lawyer from the Ministry of Environment; Andrew Roman, a lawyer from Miller Thompson; and John Macnamara, George Howse and Bob Anderson, who represented different business associations. (John Macnamara, who is participating in this session, represented the Ontario Chamber of Commerce.) Peter Victor, who also contributes to this session, was at the time the Assistant Deputy Minister of Policy in the Ministry of Environment, and was responsible for rolling out the provisions of the EBR.

The Task Force’s work

To begin their innovative work, Task Force members started with the principles that were given to them by the Minister. Over the course of several months and many meetings, they discussed various ways to deliver these principles through the EBR. One of the most contentious issues was enhanced access to the courts and a citizen’s right to sue polluters. The environmentalists argued that citizens should have the right to sue polluters if provincial environmental laws were not being applied or enforced. Businesses worried that they’d be harmed by an EBR that gave citizens an unrestricted right to sue. The Task Force eventually agreed to open up legal avenues to the public. Citizens have the right to apply for leave to appeal certain Ministry decisions such as permits or licences or to apply for reviews of existing environmental laws. Citizens were also given the right to apply for an investigation of any violation of an act, regulation or instrument and the right to sue a polluter for causing environmental harm to a public resource.

Technology and the EBR

Another EBR goal was the right for the public to participate in environmental decision making in the province and to have greater access to information. The solution that the Task Force proposed was an Environmental Registry where people could be notified about important laws and policies proposed by the government. However, this was accomplished in a way that the EBR Task Force couldn’t have anticipated at the time. The first electronic registry was developed by staff of the Ministry of Environment who trained librarians across Ontario to provide members of the public with access to this EBR ‘bulletin board’. Then, as personal computers increased Internet access, new opportunities for sharing government information dovetailed with the aspirations of the EBR. Today, the Environmental Registry is a website where every Ontarian has the right to comment on proposed provincial environmental laws and regulations. Ministries must post certain proposed environmental laws and regulations for public comment. The Ministries’ Statements of Environmental Values are also posted on the registry. As well as developing the Registry, dedicated civil servants within the Ontario public service played a critical role in setting up the infrastructure underlying the EBR, coordinating its activities across the government Ministries covered by the legislation and ensuring the Act’s success. In addition, Ministry of Environment staff were instrumental in extending the application of the EBR from the 4 Ministries proposed by the Task Force to the 13 now governed by the legislation. Another provision developed by the Task Force was protection for workers reporting environmental violations in their workplaces. If someone "blows the whistle" on the unsafe environmental practices of their employer, they are protected under the EBR. It sounds fair and simple today, but before the EBR was passed in 1993, these environmental rights were not the law of the land. In order to meet the principle of making the government more accountable and providing oversight of their environmental activities, the Task Force proposed the appointment of an independent Environmental Commissioner. When the legislation was accepted, a new office of the Environmental Commissioner of Ontario was created and run by staff of the Ministry of Environment until the first Commissioner was appointed. The current Commissioner, Gord Miller, developed this Environmental Beginnings series to commemorate the roots of environmentalism in Ontario and the pioneers in the movement. The thoughtful, systematic work of the EBR Task Force and its successful implementation by Ontario public servants involved gave citizens an Environmental Bill of Rights that has endured for 20 years, through several changes of government — continuing to make sure that Ontarians have the right to be involved in making sure our environment is protected.

Ruth Grier, Paul Muldoon, Rick Lindgren

Birth of the Environmental Bill of Rights

By Ruth Grier, Paul Muldoon, Rick Lindgren

Bob Rae, former Ontario Premier; Bud Wildman, former Minister of Environment and Energy; and Ruth Grier, former Minister of Environment, at the proclamation of the Environmental Bill of Rights.

Ontario’s Environmental Bill of Rights (EBR) is a wholly original piece of legislation – a unique law driven by the aspirations of environmentalists and forged by political consensus. In February 1994, its proclamation gave the citizens of Ontario new legal tools with which to protect the environment and demand greater accountability from government decision-makers. Yet, the EBR that we know today took more than two decades to arrive at its present incarnation.

Early glimmerings

The first glimmerings came from south of the border where a 1970 bill enshrining environmental rights was passed in the Michigan Legislature. Michigan’s law inspired two reform-minded lawyers, John Swaigen and David Estrin from the Canadian Environmental Law Association (CELA), to draw up a manifesto for their 1974 landmark book, Environment on Trial. They proposed a broad set of rights for citizens ranging from environmental assessment to standing and access to information. Then, in 1979 with environment high in the polls, Stuart Smith, as Liberal opposition leader, asked CELA’s help in drafting an environmental bill of rights, which he introduced in the Ontario Legislature. His bill was the first in a series of unsuccessful attempts throughout the 1980s to pass this legislation as a private members’ bill. Both Liberal and New Democratic Party opposition members introduced versions of it on nine separate occasions, all of which were either defeated by the government in power or died on the order paper. Although none of them crystallized into legislation, Conservative and Liberal governments did pass important environmental laws, such as the Environmental Assessment Act in 1976 and the Intervenor Funding Project Act in 1988, which addressed various “rights” envisioned in the original Bill.

First steps in Ontario

The Environmental Bill of Rights that was finally passed took the first step to becoming a legislative reality in 1990 when Ruth Grier became Environment Minister for the newly-elected New Democratic Party (NDP) government. The NDP had made an environmental bill of rights a key election promise, and expectations were high that Minister Grier would deliver on that promise. The Minister, who was committed to the general concept of a bill, set up a stakeholder committee made up of diverse interests to recommend the specific content. Initial attempts to decide on the legislation, however, ran into strong headwinds when the committee had difficulty coming to any agreement. As a result, the fate of the bill was uncertain. A different tack was proposed.

EBR Task Force

A smaller group designated as the Task Force on the Ontario Environmental Bill of Rights was set up to resolve the contentious issues. The Task Force was made up of environmental lawyers, business representatives, and a lawyer from the government, who assumed responsibility for taking Task Force proposals back to their peers for discussion and approval. This was an innovative approach to the development of legislation and its outcome was unpredictable. The process, which has been called a principled negotiation, had been tried only once before in the development of Ontario’s class action law. Minister Grier made it clear to the Task Force that if they could not agree on a Bill of Rights, the Ministry of Environment would impose legislation that might or might not be acceptable to them. She instructed them to incorporate specific rights into their proposed legislation; at the same time they were given free rein to decide what form these rights might take. They included:

the public's right to a healthy environment;
the enforcement of this right through improved access to the courts and/or tribunals, including an enhanced right to sue polluters;
increased public participation in environmental decision-making by government;
increased government responsibility and accountability for the environment;
greater protection for employees who "blow the whistle" on polluting employers.

After 55 meetings and months of deliberations, the Task Force came to a consensus on the rationale and a draft Environmental Bill of Rights. These were presented to the Minister in 1992. Many of the original provisions were transformed into novel concepts that had not been anticipated – Ministry Statements of Environmental Values that were to be the equivalent of business plans, an Environmental Commissioner’s Office to ensure government accountability, an Environmental Registry that opened the doors for public input on Ministries’ permits, policies and legislation, and new rights to seek investigations and reviews of government decisions. The proposed bill was passed less than a year later in 1993 almost unchanged, with Bud Wildman, the new NDP Environment Minister, steering it through the Legislature. Because of the way in which many disparate interests came together to create the Bill, it has had an enduring presence in the province and its provisions have given citizens a shared role in protecting Ontario’s environment.

Jim Bradley, David Oved, Sarah Rang

Environment Minister Jim Bradley — 1985-90

By Jim Bradley, David Oved, Sarah Rang

By 1985, Ontarians were concerned about environmental issues that they had barely known about a decade earlier - acid rain, toxic chemicals in the water, industrial and sewage discharges and many more. Here, Jim Bradley and some his staff discuss how some problems were resolved.

When Jim Bradley became Ontario's Minister of the Environment in 1985, after seven years as an opposition Member of Provincial Parliament, a lot of people were surprised that he wanted that particular job, which had been a minor cabinet post until then. Environmentalists and many Ontarians were surprised when he brought so many changes to environmental protection so quickly, and Bradley himself was surprised at how much he needed to do in a short time. By 1985, people around the world had learned a lot about threats to the environment. In Ontario, the public was concerned about emerging issues that they had barely known about a decade earlier - acid rain, toxic chemicals in the water, industrial and sewage discharges and what seemed to be never-ending excuses from polluters. When Bradley took office, it was more than a decade after groups like Greenpeace and Pollution Probe were established and 15 years after the first Earth Day. Ontarians were ready for more action on the environment.

Building a team for the environment

Sometimes new premiers' offices assign staff to ministers. but Bradley's boss, Premier David Peterson, gave the new environment minister wide latitude to take action, and allowed him to build his team. Bradley recruited Mark Rudolph (who was working with the federal environment minister at the time) as his Chief of Staff, and Gary Gallon as his Senior Policy Advisor. Gallon, who passed away in 2003, was a former Ontario Liberal researcher with deep roots in the environmental movement who had served on the first Greenpeace Board of Directors. He brought in David Oved (a former Queen's Park reporter) as his Press Secretary. Later, he hired Sarah Rang as a Policy Advisor. Bradley and his team proceeded to shake up environmental politics and policy in Ontario as never had been done before. It seemed as though every month, everywhere, there was a new environmental battle to be fought. The issues became top news, highlighted on the front pages of the Toronto Star, the Globe and Mail, and other media outlets across the province. As Bradley notes there was no Environmental Commissioner of Ontario's office in the 1980s, so it was important for activists to raise awareness of environmental issues through the media. One of the first actions from Bradley's team was to proclaim Ontario's Spills Bill, a law governing chemical spills that had been passed by the previous government but never proclaimed (a law must be proclaimed for it to take effect). Industries, truckers and farmers didn't like this law. Under the bill, when there was a spill, the onus was on the spiller to protect the environment by cleaning it up first -- and determining ultimate legal liability later. Bradley worked with experts in the insurance industry to prompt establishment of a spills liability insurance "facility" - a pool of funds, contributed by industry, to pay for cleaning up spills.

Bradley's Environmental Battles

Even within the government there were environmental struggles to contend with. As Environment Minister, Bradley fought internally to stop plans by the Ministry of Transportation to build a highway through Rouge River Valley (where Canada's first urban national park is now being created). He took on Ontario Hydro's resistance to controlling acid rain pollution caused by its coal-fired power plants. (Coal is now being phased out at power plants across Ontario.) Bradley also discovered that there were pollution problems creeping up along waterways and borders all around and through Ontario. In the St. Clair River, a "blob" of cancer-linked dioxin was discovered just offshore from the Dow Chemical Company in Sarnia. In many cases, companies had received permission from local Ministry of the Environment officials to discharge chemicals into the water. In some cases they did it without permission, and officials did little to enforce the rules. To put an end to these kinds of loose water pollution practices, Bradley cracked down with much tougher pollution control orders and set up the ministry's own environmental police force (now part of the Ministry of the Environment's Operations Division). Eventually, Bradley brought in a province-wide regulatory system ("Municipal/Industrial Strategy for Abatement") that set limits on every company that discharges into waterways. Bradley was also responsible for the introduction of the Blue Box recycling program, and for banning notoriously dirty-burning apartment building incinerators - up until the 1980s, apartment residents dumped their garbage down incinerator chutes and there was virtually no control over what chemicals came out from those apartment chimneys. Some of the most exciting and important advances in environmental protection in this period took place across provincial and international borders. Bradley met friends and foes alike in Congress and statehouses on cross-border issues such as acid rain and the Great Lakes, and he worked extensively with our federal government and his counterparts in Quebec, Manitoba and Atlantic and Western Canada. During Bradley's term as Minister of the Environment in the 1980s (he was appointed again as Minister in 2011), issues that have taken centre stage today were just beginning to emerge. For example, climate change was just beginning to raise concerns (the first international conference on the subject was held in Toronto in 1988). Bradley, along with Oved, Rang, Rudolph and Gallon, left a legacy for environmental change.

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.

David Estrin, John Swaigen, Joseph Castrilli

Canadian Environmental Law Association (CELA)

By David Estrin, John Swaigen, Joseph Castrilli

The renowned Canadian Environmental Law Association (CELA) was established in 1970 to use existing laws to protect the environment and to advocate environmental law reforms. Today, CELA is a non-profit organization funded by Legal Aid Ontario.

The year 1970 was pivotal for the slow evolving history of environmental regulation in Ontario. That was when a group of environmental activists and law professors, young lawyers and articling students gathered in an unused laboratory on the campus of the University of Toronto to form the Environmental Law Association (the "Canadian" would be added a few years later). The goal was to create a a public interest law clinic that could handle the heavy legal slogging for the newly-emerging environmental activists and groups fighting to control the most egregious polluters, safeguard air and water quality, and preserve natural areas.

[We had the idea that we] could use environmental laws to prevent pollution, to improve society and, to the extent that we had any environmental laws in those days, to try to enforce them.

In those early, formative days of environmental law, long before provincial and federal governments would vow to get tough on polluters, CELA undertook the first prosecutions for noise pollution in Ontario, pushed for public consultation on the first certificates of approval, and rallied support for broader, more inclusive environmental legislation. CELA also attracted a roster of prominent lawyers from private practice, including a future member of the Supreme Court, who would volunteer to argue groundbreaking cases. Over the years, CELA has been instrumental in the development and passage of Ontario's Environmental Assessment Act, the Safe Drinking Water Act, and the Environmental Bill of Rights. The association was also known for fighting and (mostly) winning a series of precedent-setting court cases. CELA lawyers

defended the Hudson, Quebec, municipal bylaw outlawing the use of cosmetic pesticides on private property
won a ruling in the Supreme Court that higher life forms cannot be patented in Canada
opposed both the proposed Adams Mine mega-dump and plans by Lafarge Canada to burn tires and other waste in an Ontario cement plant.

Following several precarious years of unpredictable and unstable funding in the early 1970s – where the organization's limited financial backing was supplemented by personal loan guarantees assumed by several of CELA's directors and individual supporters – the association was finally recognized by Legal Aid Ontario as a specialty community legal clinic. This allowed the organization to hire support staff, move into more permanent offices, and retain some of the expert counsel and researchers it had been training over the years. From the beginning, CELA helped establish the discipline of environmental law and their influence is visible even today. They established a Resource Library for the Environment and the Law, provided a hands-on training ground for hundreds of articling students, researchers, staff lawyers and directors who have gone on to play influential roles in the public and private sector, and produced resources and materials that environmental lawyers continue to rely on. The Canadian Environmental Law Reports, now circulated by Carswell, is still the country's primary environmental law reporting service, while 1974's encyclopedic Environment on Trial became the de facto textbook for the new courses in environmental law that started to appear law school calendars across the country. CELA established the Canadian Environmental Law Research Foundation (CELRF), which was able to obtain federal charitable status and could raise funds to support the legal clinic, while also undertaking arm's-length law reform projects and research grants. CELRF later evolved into the Canadian Institute of Environmental Law and Policy (CIELAP). CELA also launched the first Canadian Environmental Defence Fund (now called Environmental Defence Canada).

An Audio Archive of Ontario's Environmental History