Less park protection? Bill 197's changes to environmental assessment in provincial parks

The Environmental Assessment Act ("EAA") currently requires the Ontario Ministry of Natural Resources and Forestry ("MNRF") to consider the environmental impacts of projects within Provincial Parks and Nature Reserves.

The coming into force of Bill 197 has resulted in several amendments to the Ontario EAA including the proposal for a future regulation to exempt projects in provincial parks and conservation reserves from assessment under Ontario's Environmental Assessment Act, where the project is undertaken "by or on behalf of" the MNRF. In tandem, the Province also proposes to create a new impact assessment policy under the Provincial Parks and Conservation Reserves Act ("PPCRA") to evaluate these projects.

How are projects affected?

The proposed changes do not appear to expand what types of projects are permitted in these parks and reserves. Rather, the changes alter whether and how the EAA evaluates proposed projects within these lands.

The PPCRA currently restricts new construction and resource-extraction activities in most provincial parks and conservation reserves. These restrictions include:

• Commercial forestry activities (except for in Algonquin Park, which is subject to a specific legislative regime);
• Aggregate, soil or peat extraction (save for certain exemptions in Algonquin Park);
• Electricity Generation Facilities (except for use in the park or reserve, or within communities that are not connected to the IESO-controlled grid.^[1]);
• Prospecting, developing and working mines; and
• "Other industrial uses."

Further, the PPCRA requires a work permit issued by the Minister of Natural Resources and Forestry for:

• the construction, expansion or placement of any building, structure or thing;
• the construction of any trail or road;
• the clearing of any land;
• the dredging or filling of any shore lands; or
• any permitted activity that results or is expected to result in a major disruption or impairment of the ecological integrity of a provincial park or conservation reserve.

The proposed EAA regulation does not aim to change any of these restrictions. Rather, according to the July 8^th notice, the regulation will exempt various MNRF works from the EAA "including":

• managing existing parks or conservation reserves;
• fish and wildlife management;
• land management;
• building or structures including infrastructure;
• campgrounds and day use facilities; and
• water and shoreline works.

Currently, an MNRF proposal to carry out any of these works would trigger the approved class environmental assessment for provincial parks (the "Class EA"). This Class EA applies to:

1. Establishing, amending and rescinding boundary regulations for a new or existing provincial park or conservation reserve, including areas recommended in an approved land use direction document.
2. Acquiring and disposing of land for a new or existing provincial park or conservation reserve.
3. Managing existing and recommended provincial parks or conservation reserves.

The third category, above, encompasses: "the design and construction of buildings, structures, roads, trails or other works to support resource stewardship (such as erosion control), recreation, and tourism for provincial park or conservation reserve operations."

The Bill 197 proposal would replace the MNRF Class EA process for these three types of works with an "Impact Assessment Policy" ("IA Policy") under the PPCRA. The new IA Policy would contain some of the requirements now provided by the Class EA.

It is also likely that the IA Policy will contain more exemptions. Today, the MNRF exemptions are limited to those projects that have been assessed as "Category A" projects under the Class EA – that is, projects involving "minor or routine, low intensity facility development, and routine resource stewardship and operations activities." Given the Government's suggestion that it will focus "on projects with higher potential for harm to the environment," it can be expected that is anticipated that the future IA Policy will apply to other types of projects.

An important issue is how these proposed changes may affect infrastructure, particularly infrastructure not proposed by MNRF that may cross provincial parks and conservation reserves. Currently, the MNRF Class EA does not apply to this infrastructure. As noted in this Class EA, proposed infrastructure like highways, electrical transmission lines, and pipelines is subject to the appropriate Class EA for that subject matter or to individual assessment. As for MNRF linear infrastructure within a park, such as access roads, this would appear to be subject to the new IA Policy. However, the particular infrastructure projects that would be covered by the IA Policy, and which would be exempt, are not yet established.

Outstanding details

The PPCRA includes, as one of its purposes, "To permanently protect representative ecosystems, biodiversity and provincially significant elements of Ontario's natural and cultural heritage and to manage these areas to ensure that ecological integrity is maintained". The PPCRA and its regulations also establish a multi-step planning process for provincial parks and conservations reserves.

One result of removing EAA requirements from the planning process is that MNRF projects will no longer be subject to the delay occasioned by "bump up" requests, where an individual or organization requests that a given assessment be assessed according to a stricter standard or as an individual (rather than class) EA. As well, the proposed exemption from EA is likely to reduce timelines associated with mandatory consultation during the EA process. The question remains as to whether the purpose of the PPCRA is met as a result of Bill 197.

At this time, a great deal of detail remains unknown because the government has not yet released the content of the proposed IA Policy under the PPCRA. As a result, it is not yet clear what level of scrutiny will be applied to proposed projects, the nature and extent of the consultation that will be required, or which types projects might be exempted from assessment.