Ontario environment watchdogs say Doug Ford just gutted a law that protects your rights

Every summer, Dianne Saxe and her younger brother would escape the small flat over their father's office in a crowded, noisy, downtown Toronto neighborhood and head down to a camp in Orillia, Ontario.

For a few weeks, they'd be surrounded by the forests, birds and caterpillars inhabiting central Ontario between two lakes.

Saxe says she fell in love with trees when she was four. Decades later, she is known as the Ontario watchdog who fights for them.

Today, Saxe works a short walk away from downtown Toronto's largest park — one which essentially functions as the backyard of Ontario's legislature. On a cold, cloudy Dec. 6 afternoon, Saxe took a stroll with two National Observer journalists, leaned back and stretched her neck to look up at one of the tall, leafless tree in the park. She was facing away from Queen's Park — the pink-hued Toronto home of provincial politics — fully aware that the last government vote of the year was underway on a bill with sweeping implications for her future as well as for the environmental rights of all residents of Ontario.

By the time the sun set, the bill would become a law that would eliminate the independent watchdog office Saxe led as the Environmental Commissioner of Ontario, 25 years after the position was first created.

The legislation transfers the commissioner's position into the office of the provincial auditor general. It also notably transfers her most important role — to uphold the Environmental Bill of Rights, which gives residents the right to participate in environmental decision-making and hold the government to account on its actions, or inactions, on environmental issues — to the provincial environment minister.

This means that the government will take charge of investigating itself, whenever things are seen to go wrong in its efforts to protect environmental health and rights.

Saxe had been too busy to keep close tabs on the bill. She had been spending her days giving long, comprehensive media interviews to inform a broader audience about the damning findings of her latest annual report. This included shocking revelations that over 1,300 tonnes of sewage had been dumped into Ontario waterways over the past year.

She released her report mere days before the Progressive Conservatives announced they were eliminating three provincial watchdogs, including environment, in one short paragraph of their November 2018 fall economic statement. At the time, Finance Minister Vic Fedeli insisted that eliminating these offices would help save money, reduce red tape and increase competitiveness.

The accompanying bill to implement the proposals of the statement — Bill 57, also known as the Restoring Trust, Transparency and Accountability Act — will fold some, but not all, of the Environmental Commissioner Officer’s duties to the auditor general, effective on May 1.

The idea mirrors how the federal Parliament's environmental commissioner operates as an "assistant" in the office of the federal auditor general. The federal commissioner tracks the government's environmental laws, regulations and policies to analyze and measure whether departments and agencies are meeting goals and targets.

But, as Saxe points out, the change in Ontario is stripping away the capacity of the current commissioner's office to “measure government in terms of precisely what is damaged, destroyed and overlooked.”

“I’m outraged and heartbroken,” Saxe said in an interview with National Observer. “What a way to mark the 25th anniversary of the Environmental Bill of Rights, but to silence the commissioner and restrict the rights of the public. The government is saying to people, you can can trust us. They say they're going to police themselves. Now, when has that ever worked?”

Still, despite widespread protest, nothing could be done to stop the passage of the bill on Dec. 6, 2018. It passed three weeks after it was tabled, seeing only a few hours of debate, followed by a few hours of public consultations.

The announcement about the official removal of the Environmental Commissioner of Ontario came with no great fanfare. There was no phone call, no special event to celebrate its contributions to the protections of Ontario’s climate, no big speech about Saxe or the office she serves in the legislature.

She was sitting in her office speaking to this reporter when she heard the news.

Around 6 p.m., a member of Saxe’s staff walked into her office — an hour after the bill’s passage. With a deep-seated sigh and a forced smile, he told her: “well, Bill 57 passed with royal assent.”

“Good to know. Thank you for telling me,” Saxe replied without looking up from her desk. She paused as the room too went silent. “Good to know they don’t care about talking to people.”

Since the passage of the bill, the government has staunchly stood by its decision, saying time and again that this was not an attack of the environment or people’s rights.

“Ontario is the only Canadian jurisdiction with an independent environmental commissioner who serves as an officer of the assembly,” said a spokesperson for the Environment Ministry in an email sent to National Observer by the office of Environment Minister Rod Phillips. “The legislative amendments do not change any of the public’s rights to participate in environmental decision making.”

“Our government will ensure Ontario has both a healthy environment and a healthy economy, and be accountable and transparent in making decisions that affect the environment.”

How Ontario created — and destroyed — its Lorax

Two days after Bill 57 passed, Gord Miller sat in a Tim Horton’s in northern Toronto looking out at a snow clad neighbourhood under construction. Miller was Saxe’s predecessor, serving as environmental commissioner for over a decade before stepping down and settling down in North Bay.

“I was the Lorax,” Miller said. “I spoke for the trees.”

Without missing a beat, Miller continues reciting the Dr. Seuss children’s book about the mythical creature who served the environment. The commissioner, Miller said, speaks for the trees, "for the trees have no tongues." Or at least, that’s what it used to do, before Bill 57 passed.

“I did realize right off the bat that the (government) has no concept of what they're giving up,” he said. “So you want to get rid of it. Okay, that's an ideological thing. But to get rid of something when you have no idea the depth of the value of what you're removing. This is the great tragedy. It's a Shakespearean tragedy.”

The environmental commissioner’s office, Miller explained, has a long history, rooted in growing public concerns for the degradation of Ontario’s natural environment. A movement began in the 1970s that called for environmental rights legislation that included an independent “environmental ombudsman” to review, report and advise on such matters.

The movement “wasn’t created by a single catastrophic event,” Richard Lindgren, lawyer with the Canadian Environmental Law Association (CELA), said in a phone interview. Public and political concerns had been mounting about pollution and the loss of biodiversity, and south of the border some American states had started legislating actions to address environmental problems.

Ontario’s Environmental Bill of Rights was a summation of that, designed to give the people of province the right to do something — to go to court and challenge the government. It was, Miller said, “a hugely forward thinking piece of legislation.”

It was first proposed in the form of a private member’s bill by NDP MPP Ruth Grier that didn’t pass. Grier became minister of environment when the NDP formed government in 1990 and one of her first official acts of duty was to establish an Environmental Bill of Rights task force “because as far as she was concerned, the debate was no longer whether we need it but how we’re going to implement it,” Lindgren, who was a member of the task force, said.

The team of three industry representatives, two environmental lawyers, and government representatives sat in a series of meetings for over six months and created the statute.

The final result — a provincial statute — put in place an independent, nonpartisan, reliable voice who would tell the truth on environment, and a trusted and effective process. An Ontarian could ask for an investigation on any related matter and the commissioner would be the guardian of that request, making sure the ministry responded in the mandated 60 days. If they didn’t, the commissioner had a broad suite of powers that could kick open doors get document disclosure and question public servants — all to ensure the request doesn’t go into a black hole.

The independence of the commissioner’s office was important to ensure that politics wouldn’t interfere or upset the crucial oversight function Ontarians wanted, Grier said. “We wanted a true arm’s length advocate who was going to blow the whistle on environmental mismanagement by the Ontario government,” Lindgren said.

Saxe said the whole reason for the Environmental Bill of Rights was that the people of Ontario had learned by then that “governments cannot be blindly trusted to look after the environment”

There was no opposition to the Environment Bill of Rights or the commissioner. It passed resoundingly in 1993 and has been in service ever since, addressing virtually every significant environmental issue that has arisen in the province: toxic chemicals, approvals reform, environmental assessment, air pollution, waste management, fracking, wetlands protection, wildlife habitat, wilderness preservation, land use planning, water well regulation, and countless more.

For 25 years it worked. Governments changed, but the Environmental Bill of Rights remained (which is why Lindgren was so surprised to see Bill 57 “rear its ugly head"). Miller served the office for 15 years, working with four premiers and four governments. In that time, he was never intimidated, interfered with or compromised. “There was a deep respect for the rules,” he said. Even if there was disagreement, “there was respect for the concept of having an independent officer throughout.”

"Never in my worst dreams did I imagine a premier would remove it," Grier said with dismay in a phone interview.

The Environmental Bill of Rights was updated to reflect the urgency of modern times. It was amended in 2009 to impose a duty on the commissioner to report annually to the legislature on the progress of activities in Ontario “to reduce the use or make more efficient use of electricity, natural gas, propane, oil and transportation fuels,” and “to reduce emissions of greenhouse gases.”

“I see that collected body of work as a kind of really important environmental manifesto,” Lindgren said. “It really did set the agenda in terms of what needs to be done here in Ontario.”

Saxe’s 2018 report gives a recent example of this: an application asked the government to develop policies to improve the health of agricultural soils. Following a report on the topic, the Ministry of Agriculture, Food and Rural Affairs created policy to do just that.

Miller, too, used the office to advocate for broad changes in policy in the protections of agricultural lands and recommending changes to provincial planning rules to allow more money to be invested in transit services.

An ecologist by profession, Miller recalls how in 2001, he spoke to the Ministry of Natural Resources about their biodiversity preservation policies. To his surprise, the ministry did not have one.

At the time, legislation didn’t protect provincial parks and Ontario’s endangered species list was only a dozen long (versus the 150 recognized worldwide), said Miller. Ontarians wrote to him about it and his office in turn investigated and reported it. The minister of natural resources eventually publicly acknowledged that Ontario needed an endangered species policy, and created one.

“The environment commissioner has been way ahead of government and the government, like it or not, has been sort of been dragged, kicking and screaming, into addressing some of these pressing issues like climate change and species at risk and drinking water safety,” Lindgren said.

“The commissioner's office makes no decisions. It's not red tape. It doesn't threaten anything,” Miller said.

“We are the Lorax,” he said again. “And, in the end, the Lorax has no power. It doesn’t stop anything and it leaves with one final thought: ‘UNLESS someone like you cares a whole awful lot, nothing is going to get better. It's not.’”

“It’s not about the commissioner,” Miller added. “It’s about someone like you and your participation in environmental protection, and that’s what they’re taking away.”

Can the Ontario Ministry of Environment police itself?

Two days before Bill 57 passed, Lindgren spoke to a government committee imploring them to reconsider their decision and maintain Ontario's environmental rights. A Conservative MPP countered his objections by noting that the people can still make their voice heard at Queen’s Park: they can make presentations to the committee and they can contact their MPP.

It’s not the same thing, Miller said. Under Bill 57, “the person that you’re wanting to take action against or trying to spur into action is now the person that’s the recipient of your request for investigation,” he said. “And if that person or ministry decides they don’t want to do it, no one holds them accountable”

“Before they had to put up with Dianne Saxe, who says ‘no, this is really worth consideration’ and brings it to the attention of the legislature, but now…” Miller sticks his tongue out and blows a loud raspberry.

Ellen Schwartzel, calls the commissioner and her office “faint hope tools” or “last resort tools” for this reason. Environmental issues are “patchy,” the former deputy environmental commissioner said. They are not uniform, varying from city to city, community to community, and in levels of severity across the province. They are also often technical like steam water quality or algae growth on the surface of a lake.

“In a perfect world, the Ministry of Environment would be tracking all the environmental issues and parameters,” she said. “They would be going out and responding to all the complaints of pollution and enforcing solutions where they need to be and finding the highest priority issues.”

But the Ministry is “simply stretched too thin,” Schwartzel said. The portion of Ontario’s budget allocated to the environment and natural resources ministries has been shrinking since 2007. Last year, the combined budgets of the two ministries accounted for approximately 0.66 per cent of the provincial budget. (Compare that to the Ministry of Health, which accounted for 40 per cent of Ontario’s total operating budget.)

The result has historically been inadequate and negligent ministerial responses, Schwartzel said. Communities have been unable to get ministry staff to meet with them because the issues are just too technical or too long-gone. And the Ontario government hasn’t facilitated that process, she said, choosing to “stuff themselves with people who are essentially at desks writing new policies and less with people in the local and district offices who are inspectors and will go out on a site and do the hard on the ground work.”

“Even in a perfect world it's very valuable to have an oversight agency,” Schwartzel added.

For many, the axing of the Environment Commissioner's Office is the last nail in the coffin of Ontario’s pioneering commitment to tackling environmental issues and climate change, beginning first with the cancellation of the province’s cap and trade program and 758 energy projects and followed by a climate plan that has been criticized for lacking actionable detail.

But, where the ministry has failed, the environmental commissioner has stepped up. “The ministry has never had enough budget to do all the things it should do,” Saxe said. “That is one of the reasons why an external voice has been so necessary to bring to attention all the issues the ministry cannot get to. They are trying to do a lot with very little money, and sometimes without political support.”

One role that the environmental commissioner has filled is that of public education, whether it’s about their environmental rights or the issues. Saxe’s office fields thousands of calls from the public annually. Her staff go into communities all across Ontario and they do hundreds of speaking engagements and webinars and share easy-to-read, colourful one-page information booklets with less jargon and more graphics. Everywhere they go, they see climate change starting to bite more and more. And every new provincial city or town they visit is marked with a pin on a large wall map of Ontario in Saxe’s office.

“The combined effect of those things is that this office matters more,” Saxe said.

A ministry spokesperson said they “will take on educating the public about their rights under the Environmental Bill of Rights, and ministries will continue to be responsible for fulfilling their obligations under the Environmental Bill of Rights legislation.”

“This government is committed to transparency and accountability — the people of Ontario have a voice in protecting the Ontario we know and love, and the right to participate in decisions that affect their environment,” said the ministry’s statement to National Observer, sent from Phillips' office.

But Saxe and Miller question how the government will perform the duties.The final iteration of Bill 57 leaves Ontario’s environmental approach clouded in even more uncertainty. While it asserts that the auditor general can appoint anyone as the environmental commissioner — including Dianne Saxe — the role would no longer be independent, and its duties have been changed. At present the commissioner is mandated to write about greenhouse gas emissions and energy conservation in its annual report, but Bill 57 says the commissioner “may” report on these issues if they chose to.

The original bill also said that the commissioner’s 28 unionized employees would be transferred to the auditor general’s office, but subsequent amendments state only staffers “who are offered” employment will be able to stay — a violation of their labour rights.

“The indication we see is there are going to be major budget cuts,” Saxe said. “Generally when there are big cuts environment suffers and suffers badly.”

The Environment Ministry is working out the details of the new arrangement proposed in Bill 57, and won’t know the budget changes or cost-savings until the change is made in May, a spokesperson said. Phillips has publicly said he would like to see Saxe in the newly formed role “for continuity’s sake,” but Saxe is still uncertain.

“I am cautiously optimistic but nothing has been decided,” she said. Certain terms have to be met for her to take the job. It has to mirror the federal environmental commissioner who does her work within the auditor general’s office but has complete independence in choosing her topics of focus and writing and delivering her reports.

The stresses of climate change are coming and creating a costly reality, which demands that watchdogs like her exist to keep the government’s eyes on the bigger picture, she said. Temperatures in Toronto, Quebec, and Iqualait have been breaking records. A $80 million flood left huge damage in the city in August 2018. Last summer also saw forest fires and tornados hit the province.

Saxe says the government’s decisions so far are “frankly like rearranging the deck chairs on the Titanic.” Miller says, the government is the guy at the helm of the Titanic when it is completely upright saying “what do you mean the sea levels are rising?”

“You can beat down the environment all you want. You can fire the Dianne Saxes, but you can’t stop climate change and the impacts of climate change, and that’s the new reality,” Miller said. “It doesn’t matter because the forests are going to burn.”

'What is it that they're going to do that they don't want to watchdog to see?'

Saxe puts up a brave front and speaks calmly but there is a tinge of hurt in her voice when talks about the loss of her job. “My whole life prepared me for this,” she said quietly. “I tore up and walked away from everything I had built over 40 years. All the professional forums I had built up. I gave up each and everyone of them for a five-year contract that is no longer five years because I believed in this.”

There has been tension between Saxe and the Doug Ford government since they came into power. Saxe has not held back in her criticism of these environment policies, and will be the first to admit that her loud, critical voice is possibly one of the reasons why her office is being booted. Premier Ford couldn’t dismiss her on their first day, Saxe said, as they did with the province’s chief scientist; the law had to be changed to remove her, “which he has now done.”

The two weeks between the announcement of the bill and its passage have been the most difficult part of her job, Saxe said.

The news has fazed Saxe but it is not stopping her. There is work to be done, she says, and if she’s only got five months left, she’s going to do her best. Her biggest challenge is to be a “shock-absorber for the staff” against all this uncertainty, and navigate a rapidly changing political landscape that is threatening the relationship between environment and government.

The Ford government is “blinded by a business ideology, a narrow one that is not sophisticated enough to see the benefits in today’s complex society of having a properly functional environmental policy structure," Miller said. “We’ve reached a tipping point." The conservative movement across Canada has branded itself as being against a pro-environment agenda, he said. Right now they control the governments in Saskatchewan, Manitoba and Ontario, with Alberta and the federal election up for grabs this year — it's an imminent political shift that worries him.

Saxe said the human race has become like the mythical Greek King Midas, too focused on turning everything to gold and ignoring the real value of things we need: clean air, clean water and clean land. “Eventually it comes back to bite us,” she said.

“Everyone’s focused of Dianne losing her job, and that’s not good, but it’s taking away people’s rights, hard fought rights that took decades to establish to protect the environment, to allow us to function as an advanced economy with sophisticated rules,” Miller said. "They’re taking those away and disemboweling the legislation leaving it a skeleton standing there with no effectiveness.”

“Generally it's a bad sign, when someone wants to silence the watchdog,” Saxe said. “What is it that they're afraid of? What is it that they're going to do that they don't want to watchdog to see?”

Editor's note: This article was updated at 5:47 p.m. ET on Jan. 4, 2018 to clarify a description in the fourth paragraph that explains how the Ontario environmental commissioner's position is being transferred into the auditor general's office.