Consultation becomes tool to obstruct
Lost amid the whirlwind of outrage and political posturing over Ontario Premier Doug Ford’s use of the notwithstanding clause to cut the size of Toronto’s City Council, last week Greenpeace Canada took his government to court over another election promise: scrapping the province’s cap-and-trade carbon tax scheme.
Ending this job-killing policy was front-and-centre of Ford’s platform during this summer’s campaign. In fact, the entire election might be considered a referendum on the former Liberal government’s mishandling of the energy file, of which cap-and-trade was a central component. Ford may thus owe his huge majority to his position on the carbon tax alone.
Yet Greenpeace now claims in an application for judicial review that Ford failed to abide by a required 30-day consultation period when, on his first day as premier, he enacted regulations ending cap-and-trade permit trading, and then later introduced a bill to make those changes complete. Apparently fulfilling the will of voters is a problem for Greenpeace.
The legal issue stems from Ontario’s Environmental Bill of Rights, a legislative innovation unique to the province that provides residents with a month-long consultation on policies that may effect the environment. The Ford government claims this was unnecessary for cap-andtrade since “the recent Ontario election was a process of public participation that was substantially equivalent,” given the prominence carbon dioxide taxes played in the campaign.
It seems an entirely reasonable claim to make. All voters were doubtless aware of Ford’s plans to axe capand-trade. He won the election and promptly enacted regulations to end the buying and selling of carbon permits in Ontario. Now Bill 4, which repeals cap-and-trade in its entirety, sits at first reading awaiting a new legislative session. What purpose can a further consultation period serve when Ontario’s Parliament will debate and vote on it shortly?
It’s not even clear Greenpeace’s argument is sustainable on the finer points of the law. The Environmental Bill of Rights leaves the decision to consult up to the “consideration” of the minister, who is allowed to substitute alternative forms of public discussion. It also exempts from this obligation all policies that are “predominantly financial or administrative in nature.” And what is cap-and-trade if not primarily a financial burden on consumers and businesses?
Nonetheless, to avoid any possibility of judicial overreach, Ontario opened a 30day consultation process immediately after Greenpeace filed its lawsuit. Residents can express their opinions online until Oct. 11. Greenpeace hailed this as “a partial victory.” Whatever. Cap-andtrade no longer exists in the province and to undo this fact, as Greenpeace presumably wishes, would take a supremely heroic act of judicial activism far beyond what has happened with Toronto City Hall.
Ford’s government has properly neutralized another vexatious legal challenge to its platform in a painless, if somewhat pointless, manner. Putting this aside, however, all Canadians should be alive to the ways in which consultation requirements can frustrate the legitimate aims of democratically-elected governments.
Consultation was once a matter of taking note of the concerns of all affected parties. Lately, however, demands for consultation are becoming a way for a tiny minority of complainers or even political opponents to permanently frustrate projects that promise great benefit to the vast majority. The most recent example
A WAY FOR A TINY MINORITY ...TO PERMANENTLY FRUSTRATE.
is the invention of a federal duty to consult with Indigenous groups on major projects, and how this has stymied the economically significant Trans Mountain pipeline.
If the courts can invent a veto-like duty to consult on projects that affect Indigenous interests, how long before an inventive judge does the same thing for everyone else? Perhaps Ford should think of abolishing that problematic Environmental Bill of Rights as his next order of business. The right to be heard must not become a tool to obstruct.