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O. Reg. 342/20: TRANSIT PROJECTS AND METROLINX UNDERTAKINGS

filed June 30, 2020 under Environmental Assessment Act, R.S.O. 1990, c. E.18

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ontario regulation 342/20

made under the

Environmental Assessment Act

Made: June 30, 2020
Filed: June 30, 2020
Published on e-Laws: June 30, 2020
Printed in The Ontario Gazette: July 18, 2020

Amending O. Reg. 231/08

(TRANSIT PROJECTS AND METROLINX UNDERTAKINGS)

1. Ontario Regulation 231/08 is amended by striking out “aboriginal community” and “aboriginal communities” wherever they appear and substituting in each case “Indigenous community” and “Indigenous communities”, as the case may be.

2. Subsection 2 (6) of the Regulation is amended by striking out “Environmental Approvals Branch” and substituting “Environmental Assessment Branch”.

3. Subsection 3 (2) of the Regulation is amended by striking out “Environmental Approvals Branch” and substituting “Environmental Assessment Branch”.

4. (1) Paragraph 5 of subsection 6 (1) of the Regulation is amended by striking out “Environmental Approvals Branch” and substituting “Environmental Assessment Branch”.

(2) Subsection 6 (3) of the Regulation is amended by striking out “Environmental Approvals Branch” and substituting “Environmental Assessment Branch”.

5. (1) Subclause 7 (3) (a) (ii) of the Regulation is amended by striking out “Environmental Approvals Branch” at the end and substituting “Environmental Assessment Branch”.

(2) Clause 7 (4) (a) of the Regulation is amended by striking out “Environmental Approvals Branch” and substituting “Environmental Assessment Branch”.

6. Clause 8 (5) (a) of the Regulation is revoked and the following substituted:

(a) any existing aboriginal or treaty rights, as recognized and affirmed in section 35 of the Constitution Act, 1982, that are identified by the community as potentially being negatively impacted by the transit project; and

7. Paragraph 11 of subsection 9 (2) of the Regulation is amended by striking out “Environmental Approvals Branch” wherever it appears and substituting in each case “Environmental Assessment Branch”.

8. (1) Subsection 10 (1) of the Regulation is revoked and the following substituted:

(1) If, at any time during the 120-day period referred to in subsection 6 (2), the proponent is of the opinion that the transit project may have a negative impact on a matter of provincial importance that relates to the natural environment or has cultural heritage value or interest, or on the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982, the proponent may give written notices describing the issue to the Director of the Environmental Assessment Branch and the appropriate regional director of the Ministry.

(2) Subsection 10 (3) of the Regulation is amended by striking out “Environmental Approvals Branch” and substituting “Environmental Assessment Branch”.

9. Subparagraph 2 ii of subsection 11 (3) of the Regulation is amended by striking out “a constitutionally protected aboriginal or treaty right” at the end and substituting “the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982”.

10. (1) Subclause 12 (5) (b) (i) of the Regulation is amended by striking out “a constitutionally protected aboriginal or treaty right” and substituting “the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982”.

(2) Subclause 12 (6) (b) (i) of the Regulation is amended by striking out “a constitutionally protected aboriginal or treaty right” and substituting “the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982”.

11. Subsection 14 (1) of the Regulation is amended by striking out “Environmental Approvals Branch” in the portion before clause (a) and substituting “Environmental Assessment Branch”.

12. (1) Paragraph 4 of subsection 15 (4) of the Regulation is revoked and the following substituted:

4. Other than in respect of a transit project described in subsection (22.1), a statement that there are circumstances in which the Minister has authority to require further consideration of the change to the transit project, or to impose conditions on the change, if he or she is of the opinion that,

i. the change may have a negative impact on a matter of provincial importance that relates to the natural environment or has cultural heritage value or interest, or

ii. the change may have a negative impact on the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982.

(2) Paragraph 5 of subsection 15 (4) of the Regulation is amended by striking out “A statement” at the beginning and substituting “Other than in respect of a transit project described in subsection (22.1), a statement”.

(3) Subsection 15 (4) of the Regulation is amended by adding the following paragraph:

6. In respect of a transit project described in subsection (22.1), a description of any impacts to the timeline for implementation of the transit project.

(4) Subclause 15 (5) (a) (ii) of the Regulation is amended by striking out “Environmental Approvals Branch” at the end and substituting “Environmental Assessment Branch”.

(5) Clause 15 (6) (a) of the Regulation is amended by striking out “Environmental Approvals Branch” and substituting “Environmental Assessment Branch”.

(6) Subclause 15 (15) (b) (i) of the Regulation is amended by striking out “a constitutionally protected aboriginal or treaty right” and substituting “the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982”.

(7) Subclause 15 (16) (b) (i) of the Regulation is amended by striking out “a constitutionally protected aboriginal or treaty right” and substituting “the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982”.

(8) Section 15 of the Regulation is amended by adding the following subsections:

(22.1) Subject to subsection (22.2), subsections (11) to (22) do not apply in respect of changes to the following transit projects, and subsections (22.3) to (22.12) apply instead:

1. The transit project for a subway extension located in the City of Toronto known as the Scarborough Subway Extension and also known as the Line 2 East Extension for which the Minister issued a notice pursuant to clause 12 (1) (a) dated October 30, 2017, subject to any changes to the project made in accordance with this section, whether before or after the coming into force of  342/20.

2. The transit project for a subway extension extending from within the City of Toronto to within the Regional Municipality of York known as the Yonge Subway Extension and also known as the Yonge North Subway Extension, for which the Minister issued a notice pursuant to clause 12 (1) (a) dated April 6, 2009, subject to any changes to the project made in accordance with this section, whether before or after the coming into force of  342/20.

3. The transit project for a light rail extension extending from within the City of Toronto to within the Regional Municipality of Peel known as the Eglinton West Light Rail Transit Extension and also known as the Western Extension (Phase 2) of the Eglinton Crosstown Light Rail Transit line for which the Minister issued a notice pursuant to clause 12 (1) (a) dated May 17, 2010, subject to any changes to the project made in accordance with this section, whether before or after the coming into force of  342/20.

(22.2) Subsection (22.1) does not apply to a change to a project that is described in that subsection where, as of the date 342/20 comes into force, the proponent has distributed a notice of environmental project report addendum in respect of the change pursuant to subsection (5).

(22.3) The proponent shall provide all of the persons to whom a copy of the notice under clause (5) (a) is given an opportunity to participate in consultation respecting the proposed change to the transit project.

(22.4) Subject to subsections (22.5) to (22.7), the proponent shall consult with Indigenous communities and interested persons in the way the proponent considers appropriate.

(22.5) The proponent shall ensure that all of the persons or Indigenous communities to whom a copy of the notice under clause (5) (a) is given are provided with access to a copy of the addendum to the environmental project report.

(22.6) As part of the consultation, the proponent shall discuss with each Indigenous community that may be negatively impacted by the change to the transit project,

(a) any existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982, that are identified by the community as potentially being negatively impacted by the change; and

(b) measures for preventing, mitigating or remedying potential negative impacts on the rights referred to in clause (a), including any measures identified by the community.

(22.7) The proponent shall establish an issues resolution process to attempt to resolve,

(a) any concerns raised by Indigenous communities or interested persons in a way that does not cause unreasonable delay to the implementation of the transit project; and

(b) any adverse impacts to the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982, related to the change.

(22.8) Within 65 days of publishing the notice of environmental project report addendum under clause (5) (b) or subsection (8), the proponent shall,

(a) complete the issues resolution process described in subsection (22.7);

(b) update the addendum to the environmental project report, including by adding,

(i) a description of the issues resolution process employed by the proponent in respect of any concerns expressed by Indigenous communities and interested persons,

(ii) a description of what the proponent did in respect of the concerns expressed by Indigenous communities and interested persons, and

(iii) a description of any impacts to the timeline for implementation of the transit project as a result of how the proponent has addressed the concerns; and

(c) publish the addendum, as updated in accordance with clause (b), on its website.

(22.9) The proponent shall ensure that all of the persons to whom a copy of the notice under clause 5 (a) was given are notified of the updated addendum to the environmental project report that is published under clause (22.8) (c) and are provided with access to a copy of the updated addendum.

(22.10) Within 35 days after receipt of the notice given under subsection (22.9) by the Director of the Ministry’s Environmental Assessment Branch, the Minister may, in the circumstances specified in subsection (22.11), issue a notice to Metrolinx imposing conditions related to the change to the transit project.

(22.11) The Minister may issue a notice pursuant to subsection (22.10) only if,

(a) the Minister is of the opinion that,

(i) the way in which the proponent has addressed a concern raised in the issues resolution process established pursuant to subsection (22.7) in the updated addendum to the environmental project report that is published under clause (22.8) (c) would cause unreasonable delay to the implementation of the transit project, and

(ii) the conditions in the Minister’s notice change the way in which the concern is addressed in the updated addendum to the environmental project report that is published under clause (22.8) (c) without causing unreasonable delay to the implementation of the transit project; or

(b) the Minister is of the opinion that,

(i) the change may have an adverse impact on the existing aboriginal or treaty rights of the aboriginal peoples of Canada, as recognized and affirmed in section 35 of the Constitution Act, 1982, and

(ii) the conditions may prevent, mitigate or remedy the adverse impact referred to in subclause (i).

(22.12) If the Minister decides not to issue a notice pursuant to subsection (22.10), the Minister may, during the time period specified in that subsection, inform the proponent in writing of this decision.

(9) Clause 15 (24) (b) of the Regulation is amended by striking out “or” at the end of subclause (v), by adding “or” at the end of subclause (vi) and by adding the following subclause:

(vii) the proponent complies with the requirements in subsections (4) to (10) and (22.3) to (22.9), and any conditions imposed by the Minister pursuant to subsection (22.10).

13. Item 15 of the Table to section 1 of Schedule 2 to the Regulation is amended by striking out “Ministry of Aboriginal Affairs” in Column 2 and substituting “Ministry of Indigenous Affairs”.

Commencement

14. This Regulation comes into force on the later of July 1, 2020 and the day it is filed.