COVID-19, the environment and democratic freedoms: a cautionary tale from a Canadian province
In April 2020, in an interesting case for public engagement and environmental protection, Ontario passed a new regulation in response to the COVID-19 crisis, effectively suspending public consultation under Ontario’s 1994 Environmental Bill of Rights. In this post, we reflect on this case in the light of Canada’s decision not to ratify the 1998 Aarhus Convention – the binding global treaty which protects people’s right to public participation in environmental decision-making.
COVID-19 has been a personal tragedy for many thousands of people across the globe. At the same time, experts believe that this pandemic could mark a turning point in progress on climate change and environmental protection, while effective public engagement will be critical to making progress happen more quickly. Yet, at the same time, COVID-19 is being used in some places as an excuse for eroding both environmental protections and democratic freedoms.
Canada is often seen as a pioneer in community engagement, largely owing to perceptions about the government’s relationship with its indigenous populations (which has not been won without considerable struggle). Yet news from the provinces often reveals a different story, especially where large-scale industry is a key player.
Ontario’s 1994 Environmental Bill of Rights enables Ontarians to participate in government decision-making that might affect the environment. Among other things, it requires the government of Ontario in Toronto to inform the public about decisions that could affect the environment, including changes to provincial policy, laws or licences that are ‘environmentally significant’, and to refrain from making any changes without first consulting Ontarians openly. The new ‘COVID-19’ Regulation 115/20 of April 2020 exempts proposals for acts, policies, regulations and instruments from provisions requiring public participation in government decision-making, no matter how environmentally significant they may be.
Canada has chosen not to ratify the 1998 Aarhus Convention – known in full as the UN Economic Commission for Europe (UNECE)’s Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters – even though Canada is covered by the UNECE. According to the Canadian government’s website, the Aarhus Convention is ‘the only legally binding global instrument on environmental democracy’, and yet the government has not signed up to it because:
… Canada maintains a well-established system of engaging the public. There already exists a number of mechanisms in Canada that permit public access to environmental information, including the Access to Information Act, which gives Canadians access to federally held records. Canada complies with most of the provisions and objectives of the Convention, thus acceding to the Convention would have limited benefit to existing processes in Canada.
There is no mention here of public participation, and it is clear that Canadian federal law is, in the case of Ontario, unable to protect the rights of Canadian citizens in the provinces to maintain their ability to participate in environmental decision-making. The Aarhus Convention complaints mechanism, implemented by the Aarhus Convention Compliance Committee, would offer citizens a channel by which to appeal to a higher international body regarding decisions made in Toronto.
In contrast to Canada, the UK has signed the Aarhus Convention, and while it is not widely known about in the UK, it has been used on several occasions to challenge developments with a significant environmental impact if they are deemed not to have met the requirements of the Convention. For instance, Brexit, the High Speed 2 rail project and the recent COVID-19-related changes in requirements for public involvement in planning have all come under scrutiny from NGOs and public interest campaigns using an Aarhus lens. (For more on the UK planning changes, see also tCI Associate Ruth Shepherd’s recent blog post.) The UK’s National Renewable Energy Plan was found to be in breach of the Convention, while the Compliance Committee has determined that overall, the UK has not been complying with its Aarhus obligations.
If you are considering reducing public engagement or consultation in light of COVID-19-related constraints, or you are planning future public engagement and consultation on climate emergency measures, or indeed any infrastructure projects with an environmental impact, we can help you understand the requirements of the Aarhus Convention. This may help you to optimise your approach and enhance future decisions, while also avoiding negative NGO attention and public interest campaigns, or unwelcome scrutiny from the Aarhus Convention Compliance Committee itself.