Divisional Court Confirms Environmental Significance of Ministerial Zoning Orders and Importance of Consultation under the Environmental Bill of Rights, 1993

The recent decision of the Superior Court of Justice, Divisional Court, in Greenpeace Canada (2471256 Canada Inc.) v. Ontario (Minister of the Environment, Conservation and Parks) (“Greenpeace”)[1] has confirmed the potentially significant environmental impact of the use of Ministerial Zoning Orders (“MZOs”) as well as the government’s obligation to closely consider the criteria for determining whether public consultation is required under the Environmental Bill of Rights, 1993 (the “EBR”)[2] prior to the enactment of proposed legislation or policy.

On September 3, 2021, the Divisional Court released its unanimous decision in Greenpeace on two applications for judicial review brought by environmental advocacy organizations and others challenging the alleged failure of Ministers of the Ontario government to conduct public consultations in accordance with the EBR before the enactment of the COVID-19 Economic Recovery Act, 2020 (“CERA”).[3] While the Court dismissed the majority of the applicants’ challenges, it granted the applicants declaratory relief in one respect: the Court confirmed the unreasonableness of the failure of the Ontario Minister of Municipal Affairs and Housing (the “MMAH”) to comply with the EBR requirements for posting the proposed amendments to the Planning Act[4] respecting MZOs on the Environmental Registry (“ERO”) for public consultation prior to its implementation.

While such declaration has no practical impact on the legislation itself, which remains validly enacted, the Divisional Court’s decision nevertheless confirms the government’s consultation obligations under the EBR. As the window for public consultation is typically short, impacted parties and stakeholders should ensure they exercise their right to submit comments on ERO postings for the government’s consideration promptly if they have concerns about the language of the subject legislation or policy, its potential impacts to the environment or other related matters.

This bulletin focuses on the Divisional Court’s decision with respect to MZOs and their potential environmental significance pursuant to the EBR.