Bill 76 tosses out rule of law

Bill 76

Back in the days when Conservatives in Ontario were Progressive, and John Robarts was Premier, a crusty old judge who was Chief Justice of the province’s High Court was appointed to head a royal commission examining civil rights.

His name was James McRuer and his five-volume report was published in 1968. For almost 30 years it had been regarded as the book of golden rules on the legal relationship between citizens and their government.

Not any more. If Robarts and McRuer could see what the government of Premier Mike Harris is proposing to do to environmental laws, they would be spinning in their graves.

Take for instance Bill 76, by which the Conservatives plan to change the Environmental Assessment Act. If the Legislature passes the bill, the cumulative effect of the changes will be to toss out rule of law and replace it with law to favour whomever and whatever pleases the Conservatives.

The purpose of the Act is to anticipate and prevent environmental problems by screening in advance projects by public bodies and by « major commercial or business enterprises.”

The Conservatives’ bill will:
•           broaden Cabinet’s power to exempt projects from the need to have environmental assessments;

•           empower the Minister of the Environment to « issue policy guidelines’’ that the environmental assessment board will have to observe ‘’concerning the protection, conservation and wise management of the environment;’’

•           empower the minister to approve « class environmental assessments’’ — for example, by setting requirements for all incinerators in Ontario, or all landfills, or all timber clearcutting — but without establishing the principles by which the minister may issue approvals;

•           give the minister power to limit what the environmental assessment board can examine, again without saying what principles must govern his decisions;

•           continue the practice of allowing the minister to define what is a « major commercial or business enterprise’’ through internal policy guidelines, and thereby decree what projects must undergo environmental assessments, instead of placing a definition in the Environmental Assessment Act.

•           deny the public the right to be heard when the Minister sets the terms of reference for an environmental assessment.

The first five of these offend golden rules that McRuer established. The last offends any sense of fairness in the process.

The sum of them all means that currying favour will replace individual and public rights as the cornerstone of the law.

To deal with the last item first, if the public has no say in setting the terms of reference for an environmental assessment, it will mean that the Minister will have the ability to predetermine the outcome. In practice the result will be that no one will have confidence that the process will be effective or unbiased.

As for golden rules, here’s what McRuer had to say about laws that leave it to Cabinet or to a minister to decide on how legislation should work: « Provisions giving power to define by regulation the meaning of terms used in an Act obviously give (Cabinet or a minister), wide discretion to determine the scope and operation of the Act.

« Such delegation of legislative power provokes the comment that the Legislature was not sure what it meant, so to avoid making up its mind it delegated the power to decide to another body.”

When Cabinet or a minister can define what the Act applies to, or can exempt industries from its application, what they have been delegated « are really powers to amend the Act.’’

Powers to define or amend « should not be conferred unless they are required for urgent or immediate action’’ because they « may vitally affect rights of individuals.’’

« The rule should be that the normal constitutional process of amending the parent Act should be followed so that the amendment may be publicly debated in the Legislature.’’

At the core of McRuer’s pronouncement is the belief that and laws should be applied consistently, predictably, and equitably. That can’t happen when Cabinet and ministers are invested with what amounts to the divine right of kings.

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