The way we formulate environmental law really matters
I’ve had several meaningful discussions with planners, engineers, and land-use lawyers over the past little while. No law or policy (environmentally-focused or otherwise) is immutable, and we’ve seen tremendous changes (some might say an upheaval) in the way that the natural environment factors into the development approval process in Ontario. It’s predictable that industry folks subsumed day-to-day in this type of policy context have strong and varied opinions on this trajectory.
One topic that frequently springs forward pertains to the various instruments (legislation vs. regulations vs. policies) governments are using to protect the natural environment. To momentarily affix my policy cap, laws are basically rules that restrict behaviour and are enforceable (i.e., non-compliance is subject to penalties). The Canadian Constitution is the supreme law, while “legislation” is written law enacted by federal and provincial parliaments. “Regulations” are made under legislation and provide instructions on how to achieve legislative goals. Alternatively, “policies” and guidelines are often not enforceable (nor necessarily associated with one piece of legislation) but clarify how the government seeks to implement its laws. That’s the nutshell at least.
Given this hierarchy of legislation (overarching law), regulations (helps implement law), and policies (isn’t law but provides guidance), why do governments choose certain instruments when addressing environmental matters over others? Here we find the Provincial Policy Statement (PPS), which is a policy (province’s words) promulgated under subs. 3(1) of the Planning Act that provides direction to municipalities on matters of provincial interest related to land-use planning. It is difficult to understate the importance of the PPS in the context of environmental planning; it provides the framework for protecting significant natural features (e.g., wetlands, woodlands, wildlife habitat, valleylands, etc.) across southern and central Ontario. It is the PPS that prohibits development and site alteration in Provincially Significant Wetlands from Sault Ste. Marie to Cornwall to Windsor.
This begs the question: why is a critical pillar of environmental law in Ontario a “policy” rather than something outlined in legislation? Aren’t rules that dictate what is/is not permissible (i.e., thou shalt not develop in a Provincially Significant Wetland) better suited to legislation, where a more fulsome debate amongst policymakers, policy administrators, and the public can take place? Such questions about the finer points of governance may not animate most citizens, but they are nevertheless worth considering. In truth the PPS is quasi-regulatory (i.e., not exactly just a policy) because it was formulated by Cabinet and approved by the Lieutenant Governor, but it remains unclear if this is the most appropriate place for environmental provisions with such hefty implications.
The way we regulate the protection/removal of trees provides another instructive example. A push to enact tree protection by-laws and policies is gaining steam in municipalities across more settled portions of Ontario, like recently in Niagara-on-the-Lake. Many GTHA municipalities already have them. Some municipalities protect trees through by-laws, which is the municipal equivalent to legislation. Toronto prohibits the “injury, destruction, or removal” of all private trees greater than 30 cm diameter (at breast height) without a permit, specified under s. 813-12 of Chapter 813 of the city’s Municipal Code. There are separate Toronto by-laws that protect publicly-owned street trees and trees in ravines/natural areas.
Other municipalities have chosen to enact tree protection policies rather than by-laws. Hamilton is an example; although the city has a tree protection by-law for publicly-owned trees (such as those in the right-of-way), privately-owned trees are principally protected via its Tree Protection Guidelines. Why not a by-law? Maybe because the original tree protection by-law crafted in 2009 failed to pass council. But if a tree protection by-law was initially considered too restrictive (or failed for other reasons), why follow-up with a policy instead?
I’m left wondering if society and the environment are best served with this approach. It is generally true that policies and guidance documents are less subject to public review and debate during formulation. It is also generally true that policies are more difficult to enforce and are more easily revised (or tossed out) by the whims of the governing party. The upshot is that policies (again, in general) are less scrutinized, less enforceable, and more easily amended than laws. It makes sense to use policy to clarify law, but what if there is no law to clarify?
I offer this thought not to pronounce support for particular outcomes (i.e., more tree protection or less tree protection), but rather to highlight the importance of carefully and deliberately constructing the legal apparatus protecting trees (and the natural environment) in this province.