Preparing and reviewing terms of reference for environmental assessments in Ontario

Legislative Authority:
Environmental Assessment Act, RSO 1990, chapter E.18

This Code of Practice was developed in consultation with government agencies and other interested persons including academics, environmental assessment practitioners, environmental groups, industry associations, professional associations and proponents. We appreciate the contributions that these individuals and groups have made to finalize this document and look forward to continued input to maintain it as an effective tool for use during the environmental assessment process.

Readers should check the Ministry of the Environment, Conservation and Parks’ website or call the Client Services and Permissions Branch to find out if there have been any revisions.

Ministry of the Environment, Conservation and Parks
Client Services and Permissions Branch
135 St. Clair Avenue West, 1^st Floor
Toronto, Ontario M4V 1P5

• Tel: 416-314-8001
• Toll-free: 1-800-461-6290
• Fax: 416-314-8452
•  enviropermissions@ontario.ca
• Website: Ontario Environmental Assessments

This Code of Practice is published as a living document that will be reviewed and revised as necessary. Any comments, suggestions for revision or clarification are welcomed and should be sent to the Director of the Environmental Assessment Branch at the address listed above.

Under section 31(1)(e), the Minister of the Environment, Conservation and Parks may gather, publish and disseminate information with respect to the environment or environmental assessments for the purposes of administrating and enforcing the Environmental Assessment Act and regulations made thereunder. Therefore, the Ministry of the Environment, Conservation and Parks expects that this Code of Practice will be considered by proponents.

PIBS 6262e02
Revision 0 - June 2007
Revision 1 - October 2009
Revision 2 - January 2014

Glossary

The definitions in this glossary are intended to assist the reader in understanding the terms used in this Code of Practice. To understand these terms completely, the Ministry of the Environment recommends that both the definitions in here and in the legislation be consulted. In all cases, the wording contained in the Environmental Assessment Act shall prevail.

Aboriginal peoples

The Constitution Act, 1982 specifies that Aboriginal peoples include Indian, Inuit and Métis peoples of Canada.

Alternative methods

Alternative methods of carrying out the proposed undertaking are different ways of doing the same activity.

Alternative methods could include consideration of one or more of the following: alternative technologies; alternative methods of applying specific technologies; alternative sites for a proposed undertaking; alternative design methods; and, alternative methods of operating any facilities associated with a proposed undertaking.

Alternatives

Both alternative methods and alternatives to a proposed undertaking.

Alternatives to

Alternatives to the proposed undertaking are functionally different ways of approaching and dealing with a problem or opportunity.

Application

An application for approval to proceed with an undertaking under subsection 5(1) of the Environmental Assessment Act.

Branch

Environmental Assessment Branch, Ministry of the Environment, Conservation and Parks.

Class environmental assessment

A document that sets out a standardized planning process for those classes or groups of activities for which the applicant is responsible. It is also known as a “parent” document in some class environmental assessments. A class environmental assessment is approved under the Environmental Assessment Act and applies to projects that are carried out routinely and have predictable environmental effects that can be readily managed.

Projects defined within a class environmental assessment require no further environmental approval under section 5 of the Environmental Assessment Act, conditional upon being planned according to the procedures set out in the document and not being subject to a Part II Order. All class environmental assessments have a mechanism where the Minister may order that an “individual” environmental assessment be carried out for a particular project, if warranted (Part II Order or “bump- up”).

Class environmental assessment project

An undertaking that does not require any further approval under the Environmental Assessment Act if the planning process set out in the class environmental assessment document is followed and successfully completed. Any interested person may request the Minister or delegate to order that a class environmental assessment project be bumped up to an “individual” environmental assessment by making a Part II Order.

Commitment

Represents a guarantee from a proponent about a certain course of action, that is, “I will do this, at this time, in this way.” Proponents acknowledge these guarantees by documenting obligations and responsibilities, which they agree to follow, in environmental assessment documentation (terms of reference and environmental assessment). Once the Minister and Cabinet approve an application, the commitments within the document are often made legally binding as a condition of approval.

Consultation

A two-way communication process to involve interested persons in the planning, implementation and monitoring of a proposed undertaking.

Consultation is intended to:

• Identify concerns;
• Identify relevant information;
• Identify relevant guidelines, policies and standards;
• Facilitate the development of a list of all required approvals, licences or permits;
• Provide guidance to the proponent about the preparation of the terms of reference and environmental assessment;
• Ensure that relevant information is shared about the proposed undertaking;
• Encourage the submission of requests for further information and analysis early in the environmental assessment process;
• Enable the ministry to make a fair and balanced decision.

Deadlines Regulation

Refers to Ontario Regulation 616/98, which establishes the timing of reviews and decisions for terms of references and environmental assessments by the ministry.

Director^{footnote *[*]}

Director of the Environmental Assessment Branch, Ministry of the Environment, Conservation and Parks.

Do nothing alternative

An alternative that is typically included in the evaluation of alternatives that identifies the implications of doing nothing to address the problem or opportunity that has been identified.

Environment^{footnote *[*]}

The Environmental Assessment Act defines environment to mean:

1. Air, land or water;
2. Plant and animal life, including human life;
3. The social, economic and cultural conditions that influence the life of humans or a community;
4. Any building, structure, machine or other device or thing made by humans;
5. Any solid, liquid, gas, odour, heat, sound, vibration or radiation resulting directly or indirectly from human activities; or,
6. Any part or combination of the foregoing and the interrelationships between any two or more of them.

Environmental assessment

Environmental assessment is a study, which assesses the potential environmental effects (positive or negative) of a proposal. Key components of an environmental assessment include consultation with government agencies and the public; consideration and evaluation of alternatives; and, the management of potential environmental effects. Conducting an environmental assessment promotes good environmental planning before decisions are made about proceeding with a proposal. This is also referred to as an “individual” environmental assessment.

Environmental Assessment Act

The Environmental Assessment Act (and amendments and regulations thereto) is a provincial statute that sets out a planning and decision- making process to evaluate the potential environmental effects of a proposed undertaking. Proponents wishing to proceed with an undertaking must document their planning and decision-making process and submit the results from their environmental assessment to the Minister for approval.

Environmental effect

The effect that a proposed undertaking or its alternatives has or could potentially have on the environment, either positive or negative, direct or indirect, short- or long-term.

Expert federal authority

A federal authority that has specialist or expert information or knowledge with respect to a project that can be provided to a responsible authority, review panel, or another jurisdiction during an environmental assessment, including expertise on the implementation of mitigation measures and any follow-up program.

Federal authority

A federal authority is defined under the Canadian Environmental Assessment Act, 2012 to mean:

1. A Minister of the Crown in right of Canada;
2. An agency or other body of the federal government ultimately accountable to Parliament through a federal Minister of the Crown;
3. Any department or departmental corporation set out in Schedule I or II of the Financial Administration Act; or,
4. Any other body that is set out in Schedule 1 of the Canadian Environmental Assessment Act, 2012.

Government Review Team

Staff from government ministries and agencies (federal; provincial, including local Conservation Authorities; and, municipal, including local Boards of Health) who contribute to the review of environmental assessment documentation (terms of reference and environmental assessment) by providing comments from their mandated areas of responsibility.

Impact management measures

Measures which can lessen potential negative environmental effects or enhance positive environmental effects. These measures could include mitigation, compensation, or community enhancement.

Interested persons

Individuals or organizations with an interest in a particular undertaking. Persons with an interest in a particular undertaking often include neighbours and individuals, environmental groups or clubs, naturalist organizations, agricultural organizations, sports or recreational groups, organizations from the local community, municipal heritage committees, ratepayers associations, cottage associations, Aboriginal peoples and communities, Francophones and businesses.

Interested persons are not required to demonstrate that they will personally be affected by a particular undertaking. Interested persons are often called stakeholders.

Mediation

A dispute resolution process in which a neutral third party (mediator) who is acceptable to all parties assists disputants in reaching a mutually acceptable agreement. The mediator has no authority to impose a settlement and participation in the process is voluntary.

Minister^{footnote *[*]}

Minister of the Environment, Conservation and Parks.

Ministry^{footnote *[*]}

Ministry of the Environment, Conservation and Parks.

Ministry Technical Reviewers

Ministry of the Environment, Conservation and Parks staff, other than the Project Officer, who contribute to the review of the draft and proposed terms of reference. They form part of the Government Review Team for the proposal.

Places of public record

Official locations where interested persons may review the proposed terms of reference.

Project Officer

The assigned staff person from the Environmental Assessment Branch who manages and coordinates the review of the components of an Environmental Assessment Act application (that is, a terms of reference or an environmental assessment) for approval. The Project Officer also provides guidance on the environmental assessment process to proponents, government agencies and other interested persons.

Proponent^{footnote *[*]}

A person, agency, group or organization that carries out or proposes to carry out an undertaking or is the owner or person having charge, management or control of an undertaking.

Public record file

A public record file will be maintained by the Environmental Assessment Branch for every undertaking for which there is an application for approval under Part II and Part II.1 as well as orders under section 16 and the preparation of Declaration Orders under section 3.2 and Harmonization Orders under section 3.1 of the Environmental Assessment Act in accordance with the requirement to maintain a record under section 30 of that act.

In addition, the Environmental Assessment Branch will maintain a public record file for elevation requests under the streamlined environmental assessment process for electricity projects and waste management projects, objections for transit projects and requests for an individual environmental assessment pursuant to Declaration Orders. The purpose of the public record file is to promote transparency and consultation. Public record files are only kept for class environmental assessment undertakings where a Part II Order has been requested.

Record of Consultation

A document submitted with the proposed terms of reference that describes the consultation carried out during the preparation of the terms of reference and the results of that consultation.

Responsible authority

In accordance with the Canadian Environmental Assessment Act, 2012 and in relation to a designated project, a federal authority that is required to ensure that a federal environmental assessment of a designated project is conducted.

Stand-alone document

Additional documentation prepared separately from the terms of reference, which provides more information, but is not subject to the approval of the Minister (for example, Record of Consultation and supporting documentation).

Supporting documentation

Documentation that is submitted to the ministry, in addition to the proposed terms of reference, which provides further information on issues discussed in the proposed terms of reference. Information contained in the supporting documentation should support the proponent’s request that the terms of reference be approved by providing justification for the choices made and details of processes or methodologies to be used. These are routinely submitted as stand-alone documents.

Terms of reference

A document prepared by the proponent and submitted to the Ministry of the Environment, Conservation and Parks for approval. The terms of reference sets out the framework for the planning and decision-making process to be followed by the proponent during the preparation of an environmental assessment. In other words, it is the proponent’s work plan for what is going to be studied. If approved, the environmental assessment must be prepared according to the terms of reference.

Undertaking^{footnote *[*]}

An enterprise, activity or a proposal, plan, or program that a proponent initiates or proposes to initiate.

Introduction (1.0)

Environmental assessment is a planning and decision-making process used to promote environmentally responsible decision-making. In Ontario, this process is defined and finds its authority in the Environmental Assessment Act. The purpose of the Environmental Assessment Act is to provide for the protection, conservation and wise management of Ontario’s environment. To achieve this purpose, the Environmental Assessment Act promotes responsible environmental decision-making and ensures that interested persons have an opportunity to comment on undertakings that may affect them. In the Environmental Assessment Act, environment is broadly defined to include the natural, social, economic, cultural and built environments.

The first step in the application for approval to proceed with an undertaking under the Environmental Assessment Act is the approval of a terms of reference by the Minister of the Environment, Conservation and Parks (Minister). The public and other interested persons will have an early opportunity to be involved in the terms of reference process to get information about proposals that may affect them, and allow them to decide early on about the level of their concern and their need for continued participation in the planning process. The terms of reference will allow the proponent to produce an environmental assessment that is more direct and easier to review by interested persons. It allows the focus of the environmental assessment to be the identification and management of potential environmental effects. In addition, it can save the proponent time and money.

An approved terms of reference becomes the framework for the preparation and review of the environmental assessment. The proponent then completes the application by submitting an environmental assessment that has been prepared in accordance with the approved terms of reference. If the terms of reference is not approved and the proponent still wishes to proceed with the undertaking, the proponent must submit a new terms of reference for the Minister’s approval. Neither an approved terms of reference nor an environmental assessment prepared in accordance with an approved terms of reference guarantees that the Minister will approve an application to proceed with a proposed undertaking.

A terms of reference is not an environmental assessment and the proponent is not required to demonstrate the feasibility of its proposal at the terms of reference stage. That work is done at the environmental assessment stage using the framework set out in the approved terms of reference.

The terms of reference as part of the environmental assessment process is not a consensus building exercise. Participants do not have the power to veto an undertaking. They can provide information that will assist the Minister in deciding whether an undertaking can proceed in the public interest while ensuring that the environment is protected.

Purpose of this Code of Practice (1.1)

This Code of Practice outlines the legislative requirements and the Ministry of the Environment, Conservation and Parks' (ministry) expectations for the preparation and review of a terms of reference. This Code of Practice focuses on the fulfilment of the requirements of the Environmental Assessment Act; however, the proponent should remain aware of any requirements for obtaining other necessary approvals while preparing the terms of reference.

This Code of Practice presents an overview of:

• The roles and responsibilities of interested persons in the terms of reference preparation and review process;
• The mandatory elements of preparing a terms of reference;
• The ministry’s expectations of what proponents will provide in the terms of reference;
• The steps involved in, and the timelines associated with, the submission and review of the terms of reference. (See Appendix A.)

This Code does not apply to undertakings that are subject to the provisions set out in a class environmental assessment. A separate Code of Practice is available for class environmental assessments.

The contents of this Code of Practice should be considered in conjunction with any other relevant guidance materials available from the ministry. Where the text refers to a requirement of the Environmental Assessment Act, the relevant section from the legislation is usually referenced in brackets. While this Code references and discusses the legal framework of the Environmental Assessment Act, in case of any conflict or doubt, the wording of the Environmental Assessment Act and its regulations shall prevail.

Applicability of the Environmental Assessment Act (2.0)

Proponents wishing to carry out undertakings in Ontario must determine whether the Environmental Assessment Act applies to their proposal as soon as a problem or opportunity is identified, since undertakings subject to the Environmental Assessment Act may not proceed until an application to do so has been approved. Making this determination early also assists proponents in developing a planning process in accordance with the requirements of the Environmental Assessment Act.

In determining whether approval under the Environmental Assessment Act is required for a particular undertaking, proponents must have also regard to regulations made pursuant to the act (for example, Regulations 334, 116/01, 101/07 and 231/08) to see whether any special exemptions or designations are applicable. Where a proponent is uncertain about how regulatory provisions might apply, it may contact the Environmental Assessment Branch (Branch) for advice, but should consider obtaining its own legal or other advice. It is up to the proponent to ensure it has complied with the statute and regulatory requirements.

Generally speaking, section 3 of the Environmental Assessment Act states that it applies to undertakings by:

• A Minister of the Crown, a public body or a municipality;
• A private sector proponent that is designated by regulation; or,
• A person who enters into a written agreement with the Minister that the Environmental Assessment Act will apply.

Crown, public body or municipality (2.1)

Undertakings by the Crown, public bodies (for example, Metrolinx, GO Transit, conservation authorities) and municipalities are normally subject to the requirements of the Environmental Assessment Act. Regulation 334 defines public bodies.

The regulation states which ministers of the Crown are exempt from the requirements of the Environmental Assessment Act. The regulation also defines circumstances under which an undertaking by a municipality, other public bodies and some private sector proponents would not be subject to the requirements of the Environmental Assessment Act. Other general exemptions apply so it is important that the regulation be read in its entirety before deciding how to proceed.

Designating regulation (2.2)

Private sector proponents are not automatically subject to the requirements of the Environmental Assessment Act but may be made subject by a designating regulation made by the Lieutenant Governor in Council (section 39 of the Environmental Assessment Act).

Voluntary agreement (2.3)

Section 3.0.1 of the Environmental Assessment Act states that any person may enter into a written agreement with the Minister to have the Environmental Assessment Act apply to its proposed undertaking. This provision is used by private sector proponents and is an alternative to a designating regulation. Private sector proponents with an undertaking that it feels is likely to be designated, should discuss with the ministry the option of entering into a voluntary agreement. Entering into an agreement could save time as there are fewer procedural requirements than for a designating regulation, for example, a regulation made by the Lieutenant Governor in Council is not necessary.

Who should use this Code of Practice (3.0)

This section outlines the roles and responsibilities of the various participants involved in the preparation and review of a terms of reference. It is important to note that the information outlined herein is not meant to be exhaustive and that other participants’ roles and/or responsibilities may apply depending on the nature and complexity of a proposed undertaking.

The participants are:

• Proponents who are responsible for preparing the terms of reference and consulting with all interested persons about their proposal;
• Government Review Team members who participate in the preparation and review of the terms of reference;
• Interested persons, including Aboriginal peoples and communities, who participate in the terms of reference process by providing comments about the proposed study and the terms of reference;
• The ministry’s Environmental Assessment Branch (Branch) staff who review the proponent’s terms of reference.

Proponents (3.1)

Proponents who initiate undertakings that are subject to Part II of the Environmental Assessment Act are responsible for preparing the terms of reference. Proponents must make judgments and choices with respect to the content of the proposed terms of reference. Proponents are required to:

• Consult with Branch staff to discuss preparation, consultation and submission requirements;
• Identify government ministries and agencies, municipalities, members of the public, Aboriginal communities, and other persons who may have an interest in their proposal;
• Engage in meaningful consultation with all interested persons to identify and respond to needs and concerns;
• Establish reasonable time frames for feedback and review during the consultation process;
• Ensure that issues and concerns are identified and considered early in the planning process before irreversible decisions are made;
• Document the results of the consultation process;
• Prepare a terms of reference in consultation with the ministry, other government ministries and agencies, municipalities and all interested persons, including Aboriginal communities;
• Prepare and submit a terms of reference in accordance with applicable ministry legislation and standards (for example, Environmental Assessment Act and its regulations, applicable Codes of Practice).

Government Review Team (3.2)

Members of the Government Review Team, including ministry technical staff, should be involved from the outset during the preparation of the terms of reference. They should assist proponents in identifying areas of concern within their mandate. Members of the Government Review Team are responsible for:

• Providing information and guidance in a timely manner within their mandated areas of responsibility that the proponent should consider when preparing the terms of reference (for example, legislative requirements, policies, standards, studies, potential evaluation criteria);
• Providing consistent advice in a timely manner throughout the course of the decision-making process, or providing relevant reasons if their position changes;
• Participating in the government review of the proposed terms of reference after it is submitted to the ministry by reviewing the document based on its agency’s mandate, submitting comments to the ministry by the required deadline, and working with the proponent and the ministry to address any issues.

Interested persons (3.3)

Proponents should identify and discuss their proposal with all interested persons early in the process. Interested persons are encouraged to participate in the preparation and review of the terms of reference. Generally, their roles are:

• Identifying local issues and areas of concern and how they may be affected during the development of the terms of reference;
• Suggesting modifications to the proposal or documentation that may address concerns;
• Providing comments by the required deadline once the proposed terms of reference is submitted to the ministry.

Aboriginal communities (3.4)

Potentially affected Aboriginal communities are strongly encouraged to participate in the preparation and review of the terms of reference. Where an Aboriginal community participates in the terms of reference process, they should:

• Identify for the proponent and the ministry an appropriate contact to maintain consistency throughout the planning process in a timely manner;
• Identify any issues and concerns that may affect the community;
• Identify any Aboriginal claims or interests potentially affected by the proposal during the development of the terms of reference (for example, traditional territory, Aboriginal or treaty rights);
• If an Aboriginal or treaty right has been asserted, or potential impact identified, clearly outline the scope and nature of the asserted right(s) and the nature of the alleged infringement;
• Suggest modifications to the environmental assessment that may address their concern focusing on matters directly related to the proposal or the planning process;
• Respond to the government’s attempts to address their concerns and suggestions, and to try to reach some mutually satisfactory solution during the ministry’s review of the terms of reference;
• Be mindful of prescribed deadlines once the environmental assessment is submitted to the ministry for review and decision.

In addition, the Crown has a duty to consult with and accommodate Aboriginal communities when the Crown has knowledge, real or constructive, of the existence or potential existence of an Aboriginal or treaty right and contemplates conduct that might adversely affect it.

Section 5.1 of this Code describes the steps that will help to set the framework to ensure that:

• The proponent complies with section 5.1 of the Environmental Assessment Act.
• The Crown’s duty to consult, if it arises, is satisfied with respect to the proposed undertaking.
• The environmental assessment reflects the input of, and is responsive to, potentially affected Aboriginal communities.

Environmental Assessment Branch staff (3.5)

One of the Branch’s responsibilities is to provide guidance about the terms of reference process to assist proponents and interested persons in their understanding of the process, and ultimately to allow the Minister to make informed decisions about a proposal. This role mainly falls to a Project Officer at the Branch. The Project Officer’s roles are to:

• Provide advice and guidance about the requirements of the Environmental Assessment Act, and other ministry legislation or procedures;
• Facilitate coordination with other review processes, such as the federal environmental assessment process, in order to minimize unnecessary duplication and inconsistency;
• Evaluate the draft and final terms of reference to ensure that all legislative requirements and procedures established by the ministry are followed;
• Coordinate the ministry’s technical review of the draft terms of reference;
• Review the consultation with interested persons, including Aboriginal peoples, that has occurred during the preparation of the terms of reference;
• Coordinate the review of the proposed terms of reference when it is submitted to the ministry for a decision;
• Encourage and facilitate the resolution of outstanding issues during the process as necessary;
• Evaluate the final terms of reference and provide a recommendation to enable the Minister to make an informed decision about a proposed terms of reference;
• Maintain a public record file for the proposal.

Considerations for good environmental planning (4.0)

Environmental assessment principles (4.1)

There are a number of environmental assessment principles that are key to successful planning and approval under the Environmental Assessment Act. These principles form the foundation for the overall guidance of an environmental assessment process and provide direction when challenges present themselves. The proponent should incorporate these principles into its environmental planning process in which the first step is planning for, developing and submitting a terms of reference. Incorporating the following principles at the start and throughout will increase the likelihood that the proposed undertaking will meet the requirements of the Environmental Assessment Act. The environmental assessment will be evaluated against these principles, amongst other things. The principles include:

• Consult with potentially affected and other interested persons;
• Consider a reasonable range of alternatives;
• Consider all aspects of the environment;
• Systematically evaluate net environmental effects;
• Provide clear, complete documentation.

Consult with potentially affected and other interested persons (4.1.1)

Make the planning process a cooperative venture with potentially affected and other interested persons. Early consultation with interested persons is essential.

Consultation with interested persons is a cornerstone of the environmental assessment process and is a legal requirement of the Environmental Assessment Act. The proponent should seek to involve all interested persons as early as possible in the planning process so that their concerns can be identified and considered before irreversible decisions and commitments are made on the chosen approach or specific proposals. Proponents should present sufficient and varied opportunities for consultation and interested persons should take advantage of the opportunities and become involved in the planning process. The results of the consultation must be documented both at the terms of reference stage and at the end of the planning process. Consultation, when done well, can improve the outcome of the planning process. To achieve this, the planning process must be constructed, in part, around the involvement and contribution of potentially affected and other interested persons. The benefits of doing this include:

• Improving the understanding of environmental concerns before the preferred undertaking is selected and focusing the proponent’s planning on matters of concern;
• Encouraging the identification and consideration of issues before the environmental assessment is formally submitted to reduce the time required during the formal decision-making process to resolve outstanding issues;
• Promoting mutually acceptable, environmentally sound solutions.

Consider a reasonable range of alternatives (4.1.2)

A reasonable range of alternatives must be considered.

During the environmental assessment process, proponents should consider a reasonable range of alternatives. This should include examining “alternatives to” the undertaking which are functionally different ways of approaching and dealing with the defined problem or opportunity, and “alternative methods” of carrying out the proposed undertaking which are different ways of doing the same activity. Depending on the problem or opportunity identified, there may be a limited number of appropriate alternatives to consider. If that is the case then there should be clear rationale for limiting the examination of alternatives. Proponents must also consider the “do nothing” alternative.

Consider all aspects of the environment (4.1.3)

Identify and consider the potential effects of each alternative on all aspects of the environment.

The Environmental Assessment Act broadly defines environment to include the natural, social, economic, cultural and built environments.

During the preparation of the environmental assessment, the proponent must consider not only the potential environmental effects on the natural environment, but also the social, economic, cultural and built environments and how they interrelate for every alternative being considered. Consideration should also be given to how the project and its alternatives may interrelate with components of the environment, including with potentially changing climatic conditions over time.

The level of detail required will vary depending on the significance of the potential environmental effect and the stage in the environmental assessment process; that is, more detail will be needed once a preferred alternative has been selected.

Systematically evaluate net environmental effects (4.1.4)

Effectively evaluate alternatives in light of their advantages and disadvantages developed through a net effects analysis.

Environmental assessment typically includes the evaluation of the alternatives given the advantages and disadvantages of each alternative. During the environmental assessment process, there are distinct points where alternatives are evaluated and the net environmental effects associated with any alternative; that is, the potential environmental effects after impact management measures have been applied, are clearly identified.

Decision-making should be phased, narrowing progressively to a preferred alternative. This results in a process where alternatives will be eliminated from consideration at different points in the planning process. Decisions on what type or combination of alternatives are preferred are generally made earlier in the planning process and more detailed decisions on how to implement the preferred alternative made later.

It must be recognized that the environmental assessment planning and decision-making process is dynamic. When preparing an environmental assessment, the proponent must be sensitive to changing conditions and new information and must provide flexibility in the environmental assessment to deal with changing circumstances. This approach, if carried out effectively, will result in the identification of a preferred alternative which has a rational justification for environmental approval.

Provide clear, complete documentation (4.1.5)

The proponent must ensure that the environmental assessment represents accurately the planning and decision-making process that was followed in a clear and understandable way and must communicate that clearly in the environmental assessment document.

The environmental assessment document which is submitted to the ministry for approval should explain clearly the environmental planning and decision-making process followed to reach the conclusion of the preferred alternative and its potential impacts after impact management measures have been determined. Any interested person reading the environmental assessment document should be able to easily follow the process used by the proponent in determining the undertaking including the rationale for making certain choices. Clarity, simplicity, completeness and precision are objectives for which to strive when preparing the environmental assessment document.

Information about how these features can be incorporated in the environmental assessment planning process and the preparation of the terms of reference document is provided in Section 5 in this Code of Practice.

Project management principles (4.2)

In addition to the environmental assessment principles outlined above, there are a number of project management principles that can, when followed, assist a proponent in navigating the environmental assessment process successfully for a specific undertaking. These project management principles, when followed by the proponent should result in better submissions to the ministry and timelier decisions. These project management principles include:

• Timeliness
• Clarity and Consistency
• Openness and Transparency
• Coordination of Approvals
• Best Available Information
• Appropriate Level of Detail
• Minimize Potential Harm and Enhance Benefits to the Environment

Timeliness (4.2.1)

The proponent should commence its environmental assessment as early in the planning process as possible. This will allow sufficient time to assess the undertaking implications so that the proposed undertaking can be modified as required. It will also allow for any potential coordination with other approvals where possible.

Timeliness is also important from the perspective of consultation. The proponent should involve interested persons early in the environmental assessment planning process in order to identify and consider issues or concerns.

Expectations for a timely process also apply to interested persons. Members of the public participating in the environmental assessment process should make their submissions about proposed undertakings in a timely manner and by the prescribed deadlines so that there is sufficient time for the proponent to evaluate the submission and incorporate it in its decision-making process.

The ministry should also be timely in its decision-making, following prescribed deadlines outlined in the Deadlines Regulation (Ontario Regulation 616/98) while taking time to thoroughly evaluate applications for environmental assessments.

Clarity and consistency (4.2.2)

The environmental assessment process should be clear and consistent. The Environmental Assessment Act should be applied consistently to similar undertakings and the ministry’s expectations of all participants in the process should be articulated clearly. Proponents and interested persons should be able to expect generally how the environmental assessment process will be carried out in similar circumstances in a manner that is rational and transparent.

Openness and transparency (4.2.3)

The environmental assessment process should be open and transparent. This will enable all interested persons to follow the process through its various stages of planning and decision-making until a preferred undertaking is selected. Anyone should be able to trace the results of the environmental assessment planning process using the evaluation approaches set out therein.

Means of achieving transparency can include, but are not limited to:

• Using appropriate, well-established and easily understood evaluation methods;
• Making the process clear, rational and logical;
• Sharing complete information with all interested persons to support conclusions and recommendations at each phase in the process;
• Documenting the process in easy to understand language with explanations of the rationale for making certain choices.

Coordination of approvals (4.2.4)

Often Environmental Assessment Act approval is one of many approvals required by a proponent before its undertaking can be implemented. As early as possible in the planning process, proponents should determine whether approvals under other provincial legislation (for example, Environmental Protection Act, Public Lands Act, Lakes and Rivers Improvement Act, Conservation Authorities Act) or federal legislation (for example, Canadian Environmental Assessment Act, 2012, Navigable Waters Protection Act, Fisheries Act) are required.

Where an environmental assessment is required by another jurisdiction, to the extent possible, these multiple environmental assessment approvals should be coordinated where appropriate. At minimum, the environmental assessment should identify the other approvals required and address how they will be coordinated where possible. The ministry recognizes the benefits of coordination, but also understands that there are times when differences in approval requirements may make it impossible to coordinate environmental assessment approvals.

Best available information (4.2.5)

The proponent should provide sufficient information about the potential environmental effects (both positive and negative) of a proposed undertaking in order to demonstrate that the proposed undertaking should proceed. Proponents should prepare technical studies using the best available data; carefully select their assessment and evaluation methods to analyze their proposal; and use sound scientific, engineering and planning practices in the preparation of the environmental assessment.

Consultation with the public may assist the proponent in selecting appropriate analytical tools or information to be included in the planning process.

Proponents should be aware that while available and published data can be used in the earlier steps in the environmental assessment planning process, it is expected that there will be a transition to original field work, surveys, etc. for analysis and evaluation in the later stages of the environmental assessment planning process. The level of detail will increase as the process proceeds.

Appropriate level of detail (4.2.6)

Each environmental assessment is unique. As a result, the level of detail of required information will vary by undertaking or stage in the planning process. The appropriate level of detail depends on a number of factors such as the number of approvals required; the nature and complexity of the proposed undertaking; the potential for environmental effects; and the level of public interest. The level of detail presented in an environmental assessment should be sufficient to fulfil the requirements of the Environmental Assessment Act and to assure interested persons that the proposed undertaking is technically feasible and achieves environmental protection.

Minimize potential harm and enhance benefits to the environment (4.2.7)

The environmental assessment planning process consists of a systematic evaluation of the potential environmental effects of alternatives, and weighing the advantages and disadvantages of proceeding with the proposed undertaking. In doing so, the proponent should attempt to prevent, avoid or minimize adverse environmental effects through the application of impact management measures. At the same time, proponents should consider societal benefits of the undertaking to the environment in their evaluation process.

Proponents should make every effort to avoid or minimize potential adverse environmental effects through the application of impact management measures; however, it may not be possible to manage all of them. There will be times when some individuals may be affected by an undertaking that would benefit society as a whole and this will have to be considered during the environmental assessment planning process.

Statement of Environmental Values and ministry decision-making (4.3)

Under Ontario’s Environmental Bill of Rights, 1993, the public has the right to be informed of environmentally significant decisions the provincial government makes. The Environmental Bill of Rights, 1993 applies to the ministry and requires that the ministry develop a Statement of Environmental Values. The ministry’s Statement of Environmental Values is an important part of the work the ministry does to protect the environment as the Statement sets out important principles to be considered when the ministry makes environmentally significant decisions. The following text appears in the ministry’s Statement of Environmental Values in the Guiding Principles section:

1. The ministry adopts an ecosystem approach to environmental protection and resource management. This approach views the ecosystem as composed of air, land, water and living organisms, including humans, and the interactions among them.
2. The ministry considers the cumulative effects on the environment; the interdependence of air, land, water and living organisms; and the relationships among the environment, the economy and society.
3. The ministry considers the effects of its decisions on current and future generations, consistent with sustainable development principles.
4. The ministry uses a precautionary, science-based approach in its decision-making to protect human health and the environment.
5. The ministry’s environmental protection strategy will place priority on preventing pollution and minimizing the creation of pollutants that can adversely affect the environment.
6. The ministry endeavours to have the perpetrator of pollution pay for the cost of clean up and rehabilitation consistent with the polluter pays principle.
7. In the event that significant environmental harm is caused, the ministry will work to ensure that the environment is rehabilitated to the extent feasible.
8. Planning and management for environmental protection should strive for continuous improvement and effectiveness through adaptive management.
9. The ministry supports and promotes a range of tools that encourage environmental protection and sustainability (e.g. stewardship, outreach, education).
10. The ministry will encourage increased transparency, timely reporting and enhanced ongoing engagement with the public as part of environmental decision-making.

View the ministry’s Statement of Environmental Values in its entirety.

To support the application of the ministry’s Statement of Environmental Values in its environmental assessment decision-making, below are some best practices for proponents to consider when conducting an environmental assessment and providing submissions to the ministry. The following information is intended to assist proponents in providing information to the ministry that enables the Minister to fully consider the Statement of Environmental Values before a decision is made under the Environmental Assessment Act.

Proponents are encouraged to provide the following information as a separate section in submissions made to the ministry:

• Assess impacts on the environment in the context of an ecosystem approach. This approach views the ecosystem as composed of air, land, water and living organisms, including humans, and the interactions among them.
• Include information about potential cumulative effects of the project in combination with past, present and reasonably foreseeable future activities where possible. Proponents are advised to consult with government agencies to identify any already-approved projects that will be built in the future, and to consider their potential cumulative impacts to the extent possible.^{footnote 1[1]}
• Include information that shows how scientific, social and economic considerations have been taken into account. Proponents are also encouraged to conduct appropriate scoping in time to ensure that all elements of the undertaking’s life cycle (commissioning, operations, decommissioning) are assessed, in order to appropriately protect the environment for current and future generations.
• Use quantitative scientific data to draw conclusions whenever possible. The proponent is expected to articulate the level of uncertainty associated with data and conclusions, along with the risk of serious or irreversible environmental harm associated with the project.
• Provide information about proposed pollution prevention or impact mitigation measures that could be used, in accordance with the focus of the environmental assessment program on wise management of the environment and conservation.
• Include information indicating how any potential unforeseen impacts will be remediated by the proponent.
• Include information confirming that the proponent will bear the costs of remediation of any unforeseen environmental impact.
• Make a commitment to review the assessment on an ongoing basis so that any unforeseen environmental impacts can be addressed using an adaptive management approach.
• Use a range of tools to complete the assessment that represent best practice for assessing the environmental components under consideration.
• Document how they have followed ministry guidance on consultation, such that the process is transparent, timely, accessible and represents enhanced ongoing engagement with the public.

Preparation of a terms of reference (5.0)

The first step in the application for approval to proceed with an undertaking is the submission and approval of a terms of reference. The terms of reference provides a framework for the preparation of the environmental assessment. It sets out the proponent’s work plan for addressing the legislated requirements of the Environmental Assessment Act when preparing the environmental assessment.

On average, proponents take from six to nine months to prepare the terms of reference. This timeline is dependent on the scale and complexity of the proposal and the level of public interest.

The specific contents of the terms of reference will vary for each proposal; however, there are general expectations of what should be included in the document. These expectations, which are outlined further in this section of the Code, are consistent with the generic requirements as defined in subsection 6.1(2) of the Environmental Assessment Act.

Initiating the terms of reference process (5.1)

Before starting to prepare the terms of reference, a proponent must contact the Branch to speak to one of the supervisors in the Environmental Assessment Services Section. After that initial discussion, a Project Officer will be assigned to the file who will then contact the proponent. This Project Officer will serve as the one-window ministry contact during the terms of reference process and will offer guidance and advice to the proponent and all interested persons about the planning process and their role in it.

The Project Officer will ask the proponent to develop a program for consulting with interested persons during the preparation of the terms of reference. Proponents should identify key milestones in the development of the terms of reference, such as the identification of alternatives or evaluation criteria, and consult with interested persons at those times. The proponent will refer to the ministry’s Code of Practice entitled, Consultation in Ontario’s Environmental Assessment Process, for guidance in developing the consultation program. The Project Officer will give the proponent a copy of the Branch’s master Government Review Team list, which will help the proponent identify the government agencies and ministries to be consulted who may have a mandated interest in their proposal. Appendix B contains a truncated version of the master Government Review Team list.

As a tool to keep interested persons informed about the proposal, the proponent is advised to maintain a website with information about their proposal. The website, which is to be kept up-to-date and maintained throughout the life of the project, can be used as a depository for notices (of consultation events, for example), reports and studies, and the terms of reference.

When the proponent submits the terms of reference to the ministry for a decision, it must be accompanied by a description and results of the consultation carried out during the preparation of the terms of reference (section 6(3) of the Environmental Assessment Act). The Minister will consider this documentation when making a decision about the terms of reference.

The proponent must prepare a Notice of Commencement of Terms of Reference, an example of which can be found in Appendix C. The Notice will announce the start of the planning process and will provide information to interested persons about what is being proposed and how to become involved. The proponent should discuss with the Project Officer about to whom and how the Notice is to be given. Generally, the Notice should be given in an accessible location, such as a newspaper and on the website that will be maintained for the project. A copy of the Notice is to be sent to the Project Officer.

The proponent should consult with the Canadian Environmental Assessment Agency early in the process to determine if the Canadian Environmental Assessment Act, 2012 applies to its proposal. Through the passage of the Canada-Ontario Agreement on Environmental Assessment

Cooperation, Canada and Ontario have committed to work closely to coordinate their environmental assessment requirements.

Consultation with Aboriginal communities

Consultation with potentially affected Aboriginal communities is also required. Proponents should prepare a list of Aboriginal communities that are potentially affected by or interested in an undertaking. In doing so, the proponent shall contact the organizations listed on the environmental assessment page of the ministry’s website, such as the Ministry of Aboriginal Affairs and Aboriginal Affairs and Northern Development Canada, to identify which Aboriginal communities should be contacted about the project.

Consultation with Aboriginal communities at the terms of reference stage is intended to allow the proponent to identify and consider potential concerns and issues of Aboriginal communities and to provide those communities with an opportunity to receive information about and have meaningful input into the development of the terms of reference. In addition, it is the intent of such consultation to address situations where the Crown may have a duty to consult with Aboriginal communities.

It should be noted that whether or not the Crown has a constitutional duty to consult with an Aboriginal community, the community may be an interested person for the purposes of consultation about the terms of reference. Any reference to interested persons in this Code should be read to include Aboriginal communities.

Aboriginal rights and treaty rights are protected by section 35 of the Constitution Act, 1982. Aboriginal rights stem from the practices, customs and traditions, which are integral to the distinctive culture of the Aboriginal community claiming the right. Treaty rights stem from the signing of treaties by Aboriginal communities with the Crown.

The Crown may have a duty to consult with Aboriginal communities in order to satisfy the Crown’s responsibilities with potential adverse impacts of undertakings on asserted or established Aboriginal or treaty rights. In this event, the approach to consultation will vary depending on the specifics of each proposed undertaking.

This Code is not intended to fully describe how any duty, if it is triggered, may be discharged. However, the Crown may delegate the procedural aspects of consultation to proponents, and recognizes a corresponding responsibility of Aboriginal communities to participate in this process, make their concerns known and respond to efforts to address their concerns.

Drafting the terms of reference (5.2)

After developing the consultation program and issuing the Notice of Commencement of Terms of Reference, the proponent can start drafting the terms of reference. The proponent should consult with the Project Officer as needed while drafting the terms of reference. It is the proponent’s responsibility to submit a terms of reference that will result in an environmental assessment about which the Minister can make an informed decision.

The content of each terms of reference will differ based on the proposed undertaking, or the problem or opportunity. The content and amount of detail identified in a terms of reference will also differ based on how far in the planning process the environmental assessment process was initiated. While the Environmental Assessment Act sets out the generic requirements that must be addressed in the environmental assessment, the Minister may approve, through the terms of reference, exceptions to these requirements. The Minister may require additional information or may determine that some of the generic requirements are not necessary as long as the proposed terms of reference is consistent with the overall purpose of the Environmental Assessment Act and in the public interest.

The Environmental Assessment Act does not identify what is to be included in the terms of reference. In addition to meeting the requirements of section 6 of the Environmental Assessment Act, it is the ministry’s expectation that the terms of reference discuss the following elements, as applicable:

• Identification of the proponent;
• Indication of how the environmental assessment will be prepared;
• Purpose of the study or undertaking;
• Description of and rationale for the undertaking;
• Description of and rationale for alternatives;
• Description of the existing environment and potential effects of the undertaking;
• Assessment and evaluation;
• Commitments and monitoring;
• Consultation plan for the environmental assessment;
• Flexibility to accommodate new circumstances;
• Other approvals required.

It is the responsibility of the proponent to consult with interested persons during the preparation of the terms of reference. The proponent is responsible for documenting the consultation activities and their results, and submitting the documentation with the proposed terms of reference when it is submitted for approval.

Identification of the proponent (5.2.1)

The terms of reference is to include a brief, clear statement identifying the proponent. If there is more than one proponent, the relationship between them and how they plan to work together, including their responsibilities, throughout the environmental assessment process must be explained. It will be the responsibility of the proponent(s) to prepare the environmental assessment in accordance with the terms of reference if it is approved.

Indication of how the environmental assessment is to be prepared (5.2.2)

According to subsection 6(2) of the Environmental Assessment Act, the terms of reference must either:

1. Indicate that the environmental assessment will be prepared in accordance with the general requirements in subsection 6.1(2);
2. Indicate that the environmental assessment will be prepared in accordance with such requirements as may be prescribed for the type of undertaking the proponent wishes to proceed with; or,
3. Set out in detail the requirements for the preparation of the environmental assessment.

Determining under which section the environmental assessment is to be prepared should be discussed with the Project Officer. If a proponent is in the very early stages of the planning process following the requirements of subsections 6(2)(a) and 6.1(2) of the Environmental Assessment Act will provide a systematic framework for determining the undertaking for which approval will ultimately be sought. Subsection 6.1(2) outlines the generic requirements of what an environmental assessment should include, such as the identification and evaluation of alternatives.

Submission under subsection 6(2)(b) is currently not possible as no requirements for any types of undertakings have been prescribed.

Proponents who are further along in their planning may be in a better position to define how they intend to prepare their environmental assessment and may be able to follow subsections 6(2)(c) and 6.1(3) of the Environmental Assessment Act. Subsection 6.1(3) states that the environmental assessment can consist of information other than the generic requirements outlined in subsection 6.1(2).

Defining that the environmental assessment is to be prepared in accordance with 6(2)(c) and 6.1(3) of the Environmental Assessment Act (that is, including more or less of the generic requirements outlined in subsection 6.1(2)) is commonly known as “focussing” though the term is not used in the legislation. The elements of the environmental assessment that is prepared under subsection 6.1(3) should not differ drastically from the generic elements outlined in subsection 6.1(2), and the proponent must be clear in the terms of reference about what will be different. Justification for following subsection 6(2)(c) must be provided in the proposed terms of reference and is subject to the Minister’s approval.

Further information about how the subsection under which the environmental assessment will be prepared may be affected by the alternatives that will be considered, can be found on page 29, Section 5.2.5, Description of and Rationale for Alternatives.

Purpose of the study or undertaking (5.2.3)

The terms of reference should contain a brief description of the purpose of the study to be carried out. The purpose can be as general or specific as warranted; however, it should be general enough to allow a reasonable range of alternatives to be considered. If the proponent already knows some details about the undertaking for which approval will ultimately be sought, the purpose of it can be generally stated in the terms of reference.

What does the proponent wish to achieve by engaging in the environmental assessment process? Why does the proponent need to do this study or pursue a particular undertaking? These are two questions to consider when determining the purpose of the study or the undertaking. The response, that is, the purpose, may be stated in terms of the intended effect on society, the particular problem to be solved or alleviated, or the opportunity which is to be pursued. The possible solutions and criteria for evaluating them must not be included in the purpose statement.

For example, for many waste management undertakings a common purpose is to provide waste disposal capacity for a particular municipality for a particular number of years. The reasoning behind this is usually that the local landfill is nearing capacity and the environmental assessment process has been initiated to find a solution to the impending waste management problem.

For a transportation undertaking, the purpose may be to provide additional roadway capacity for people and goods between points A and B within a defined study area over a particular number of years.

The proponent will refine the purpose statement if required as it proceeds through the planning process and present the final purpose statement in the environmental assessment. The proponent will state this commitment in the proposed terms of reference.

Description of and rationale for the undertaking (5.2.4)

If known, the terms of reference should contain a preliminary description of the undertaking for which approval will be sought. Ultimately, the environmental assessment will contain the detailed description of the undertaking. Proponents may choose to begin the environmental assessment process before an undertaking is defined. In this case, the description of the proposed undertaking will be conceptual until a specific undertaking is selected from the alternatives that are to be considered. Alternately, a proponent may begin the environmental assessment process with a well-defined undertaking that has been identified through previous planning studies.

In the environmental assessment, the rationale for the proposed undertaking will be required. If an undertaking is described in the terms of reference then the rationale for it should also be given. If the proponent is early in the planning process and the proposed undertaking is not yet known, a commitment to provide the description and rationale for the undertaking in the environmental assessment should be stated in the terms of reference.

The description and rationale will evolve during the preparation of the environmental assessment. Therefore, the proponent should state in the terms of reference that the final description of the proposed undertaking and the rationale for it will be included in the environmental assessment once alternatives have been considered and evaluated.

There may be occasions when the rationale for a proposed undertaking has already been determined through another planning process or results from a provincial government priority initiative outside of the environmental assessment process such as Growth Plans under the Places to Grow Act, 2005, provincial transportation network plans, transportation or infrastructure Master Plans, provincial government priority initiatives (announcements in throne speeches, budget announcements or initiatives in provincial plans), or Official Plans which have been approved under the Planning Act, for which there was public consultation.

In these cases, it is sufficient to state in the terms of reference that the rationale for the proposed undertaking is the result of another process or initiative which should be identified. Additional information can be provided in the supporting documentation that outlines the other process or initiative which provides the rationale, the decisions made around the process or initiative and the consultation that took place. Proponents, during the environmental assessment, can rely on the previous process or initiative to provide rationale for the proposed undertaking without having to justify their choices again.

Description of and rationale for alternatives (5.2.5)

At the heart of the environmental assessment planning process in Ontario is the comparative analysis of alternatives, assessing the advantages and disadvantages of the alternatives and determining the best alternative that is appropriate to address the problem or opportunity.

In the terms of reference, it is essential to set out a reasonable range of alternatives to be examined in the environmental assessment or the process by which a reasonable range of alternatives will be determined in the environmental assessment. This should be done in consultation with the ministry, other provincial and federal agencies, and other interested persons.

Why look at alternatives?

Subsection 6.1(2) of the Environmental Assessment Act requires that proponents consider alternatives in the environmental assessment. The purpose of this requirement is to ensure that the most appropriate means of addressing the identified problem or opportunity is selected. For public sector proponents, one purpose of looking at alternatives may be to justify the expenditure of public dollars in the most environmentally responsible manner. For a private sector proponent, it may be as simple as determining the best way to implement a business plan. Examining alternatives assists in identifying potential environmental effects and illustrates the advantages and disadvantages between various options for solving a problem or taking advantage of an opportunity that provide societal benefits. The documentation of this process is not required for the terms of reference (just the commitment to do so is) but the environmental assessment will need to illustrate why and how the proponent has selected the preferred alternative.

Types of alternatives

The Environmental Assessment Act makes reference to two types of alternatives: “alternatives to” a proposed undertaking and “alternative methods” of carrying out a proposed undertaking. Alternatives to a proposed undertaking are functionally different ways of approaching and dealing with a problem or opportunity (what types of activities will address the problem or opportunity). Alternative methods are different ways of performing the same activity (where and how). Any general references to alternatives in this Code include both alternatives to a proposed undertaking or alternative methods of carrying out a proposed undertaking.

For transportation undertakings, alternatives to could include: new or improved public transit, rail service, air service, traffic demand management and new or improved roads. For a road alternative, alternative methods could include: improvements to existing roads, construction of a new road, different road types and different road alignments.

Alternatives to for energy undertakings could include: transmission of energy, new generation and conservation (reduction in demand for energy). Alternative methods for a transmission line could include: different locations or alignments, line voltages, tower design and ancillary facilities.

These examples are illustrative only and there could be more, less or different alternatives that a proponent may wish to consider. The range of alternatives to be considered is determined by the proponent on a case-by-case basis taking into account specific circumstances, the technical requirements of the Government Review Team, and the views of the public, Aboriginal communities and other interested persons.

Range of alternatives to be examined

The consideration of a range of alternatives which is reasonable for the intended study is an important component of an environmental assessment. The ministry refers to this as a reasonable range of alternatives. It is important to consult with interested persons early in the planning process before decisions are made to include or exclude certain alternatives. The Project Officer can also assist the proponent; however, the decision about what constitutes a reasonable range of alternatives remains the proponent’s responsibility, subject to the Minister’s approval.

The range of alternatives that will be considered should address the problem or opportunity and be within the scope of the proponent’s ability to implement. It should be determined by the significance of potential environmental effects of the proposed undertaking, and the circumstances specific to the proposal (for example, the proponent’s situation, timing, financing).

Where appropriate, proponents may conduct an initial screening of alternatives before or at the terms of reference stage to determine the range of alternatives which will be examined in the environmental assessment. Screening criteria need to include considerations of key environmental factors such as the potential impacts to the natural environment, potential cultural and socio-economic impacts and impacts to Aboriginal and Treaty rights. Consultation on scoping should be carried out. Placing a general overview of the screening results in the terms of reference may help interested persons to understand how alternatives were selected for further study. The detailed screening results should be included in the supporting documentation rather than in the terms of reference itself. This supporting documentation will be subject to public comment and will be considered by the Minister in his decision whether to authorize the scoping.

When determining the alternatives that will be considered in the environmental assessment, the proponent should, at a minimum, consider the following:

• Do they provide a viable solution to the problem or opportunity to be addressed?
• Are they proven technologies?
• Are they technically feasible?
• Are they consistent with other relevant planning objectives, policies and decisions (for example, Official Plan, Provincial Policy Statement, Growth Plans under the Places to Grow Act, 2005)?
• Are they consistent with provincial government priority initiatives (for example, waste diversion, energy efficiency, source water protection, reducing greenhouse gas emissions)?
• Could they affect any sensitive environmental features (for example, provincially significant wetlands, prime agricultural area, endangered species habitat, floodplains, archaeological resources, built heritage)?
• Are they practical, financially realistic and economically viable?
• Are they within the ability of the proponent to implement?
• Can they be implemented within the defined study area?
• Are they appropriate to the proponent doing the study?
• Are they able to meet the purpose of the Environmental Assessment Act?

It should be noted that these questions can be used to help proponents identify a reasonable range of alternatives; however, these questions are not intended to be used by proponents to identify the preferred alternative to bring forward into an environmental assessment by screening out all other alternatives.

The identification of the preferred alternative should be carried out as part of the environmental assessment and not the terms of reference. Any decisions that lead to the focussing of alternatives need to be documented and demonstrate the consideration of key environmental factors such as potential impacts to the natural environment, cultural and socio-economic impacts, and potential impacts to Aboriginal and treaty rights, including consultation with all interested stakeholders during the decision-making process.

It is important to note that what is reasonable for one proponent to implement may not be reasonable for another when trying to solve a similar problem because the circumstances between proponents may vary widely. A private sector proponent’s inability to expropriate land or implement public programs will influence the range of alternatives it may examine. Public sector proponents may be restricted by geographic area, jurisdiction, or broader land use planning decisions (for example, Official Plans, Growth Plans, Provincial Policy Statement). Environmental assessments are often required to implement projects resulting from broader policy decisions for the public sector and therefore may be limited in the number of alternatives that are examined. The ministry recognizes that there may be restrictions on some proponents that will limit the range of alternatives examined. The proponent must provide justification in the terms of reference for limiting the examination of alternatives.

For example, a municipality and a private sector proponent would both like to increase waste disposal capacity in a semi-rural community. The municipality might consider one or more of the following as a reasonable range of alternatives to:

• Waste diversion program;
• Export;
• Landfill; or,
• Thermal technology.

The private sector proponent may only consider landfill or on-site diversion because:

• It cannot implement a municipal waste diversion program such as curbside recycling;
• Export would affect their business; and,
• Thermal technology is not economically viable because waste volumes are too small.

Alternative methods for the municipality could include a site selection process for the alternative chosen, as they have the ability to expropriate land. For a private sector proponent, there may be different designs on one site as they only own one site and cannot expropriate.

Some proponents of undertakings such as resource undertakings, trail development, service area expansions, expansions of existing transit facilities, may not have any alternatives to their proposal or aspects of their proposal, other than the “do nothing” alternative. If this is the case, the proponent should discuss this with the Project Officer. The examination of one alternative compared against the do nothing alternative is acceptable as long as justification is provided for doing so and consultation on that justification has been or will be carried out. However, proponents take a risk that the limited alternative may not be acceptable to the Minister when a decision is made, and that the proposal may not go ahead.

Do nothing alternative

The do nothing alternative represents what is expected to happen if none of the alternatives being considered is carried out. The consideration of the do nothing alternative assists all participants. It is a benchmark against which the consequences of the alternatives can be measured in order to determine, amongst other things, the extent to which other alternatives address the problem or opportunity. The do nothing alternative can also highlight the benefits of proceeding with the proposal. A clear presentation of the do nothing alternative also helps the Minister in deciding whether the undertaking should be allowed to proceed. It is generally considered to be good environmental assessment practice to include the do nothing alternative. Proponents can then compare other alternatives with the do nothing alternative.

How alternatives can affect the way in which the environmental assessment will be prepared

There are three different ways in which a proponent can prepare an environmental assessment. As outlined on pages 26 and 21, Section 5.2.2, Indication of How the Environmental Assessment Is to Be Prepared, the terms of reference must indicate how the environmental assessment will be prepared. Subsection 6(2) of the Environmental Assessment Act sets out three different ways in which an environmental assessment can be prepared. As no requirements for any types of undertakings have been prescribed, a proponent cannot currently proceed under subsection 6(2)(b) of the Environmental Assessment Act. Proponents are therefore proceeding under either subsection 6(2)(a) or subsection 6(2)(c).

Proponents who are in the early stages of planning and have not identified a potential solution to their problem or opportunity are advised to follow subsection 6(2)(a), which states that the environmental assessment will be prepared in accordance with the generic requirements outlined in subsection 6.1(2) of the Environmental Assessment Act. Proponents proceeding under subsections 6(2)(a) and 6.1(2) are obligated to include consideration of a reasonable range of both types of alternatives in the environmental assessment. A terms of reference prepared under subsection 6(2)(a) should clearly state which alternatives will be considered in the environmental assessment or the process by which alternatives will be identified and evaluated. Generally proponents would outline the alternatives to in the terms of reference and state that the alternative methods will be identified and evaluated once a preferred alternative to is chosen. If the proponent chooses to also identify alternative methods in the terms of reference, it should identify alternative methods for all the alternatives to so that it is clear that the proponent has not pre-determined what alternative to is preferred.

In the event that the proponent has already done work as part of another process that has similar requirements to the Environmental Assessment Act, and can provide justification for the process followed, the environmental assessment could limit the discussion to alternative(s) that address the specific needs and circumstances of that undertaking. In this case, it may be more appropriate for a proponent to follow subsection 6(2)(c) and set out in detail the requirements for preparing the environmental assessment. The environmental assessment would then be prepared under subsection 6.1(3) of the Environmental Assessment Act, which states that the approved terms of reference may provide that the environmental assessment consist of information other than the generic requirements as outlined in subsection 6.1(2).

If proceeding under subsections 6(2)(c) and 6.1(3), the terms of reference must set out detailed requirements for the preparation of the environmental assessment. This approach was designed for proponents who are more advanced in their decision-making and have already identified a specific undertaking for which the consideration of alternatives to is not appropriate (that is, have carried out a planning and decision- making process that has included consultation with interested persons on the criteria and assessment to identify a more limited scope of alternatives to and the proponents have fully documented that process), or for proponents who are relying on another public planning process that has developed alternatives to the preferred alternative. In such cases, the terms of reference may propose that the environmental assessment only need to focus on alternative methods. This is often the case for many private proponents, or Crown ministries or agencies (for example, Ministry of Transportation) who have a specific type of business or a specific mandate. If proponents are limiting the discussion to only look at alternative methods, the terms of reference should identify this and set out the alternative methods to be examined or the process by which they will be identified at the environmental assessment stage.

It should be noted that in some instances, it might not be appropriate to limit the range of alternatives (that is, alternatives to or alternative methods) to be considered. For example, where the impacts of a project may be significant and focussing the alternatives would restrict the proponent’s ability to evaluate other alternatives with fewer impacts, a proponent should consider looking at a range of alternatives to ensure the terms of reference will produce an environmental assessment that is consistent with the purpose of the Environmental Assessment Act and the public interest. In these cases, the proponent should consult with the ministry before determining what approach it takes.

Integrating previous planning work to reduce duplication

Cases may arise where proponents have previously considered alternatives during a separate planning or decision-making process. If the earlier process had similar provisions to those of the Environmental Assessment Act such as:

• An examination of alternatives;
• Regard for the environment and environmental effects;
• Public consultation with interested persons such as the public, Aboriginal communities and municipalities;
• Ability for the public to inspect the planning document in its entirety;
• Approval by a recognized decision-making body in a transparent manner such as municipal council resolution or provincial government policy decision^{footnote 2[2]}

then the proponent may propose to limit the discussion of previously examined alternatives. Relevant information previously considered under provincial transportation network plans, transportation or infrastructure Master Plans, Growth Plans under the Places to Grow Act, 2005, Official Plans approved under the Planning Act and business plans are examples of documents that could be submitted with a terms of reference as part of the supporting documentation to support the selection of alternatives for examination in the environmental assessment.

There are also times when proposed undertakings result from a provincial government priority initiative. Provincial government priority initiatives include announcements in throne speeches, budget announcements or initiatives in provincial plans. In these cases it may be difficult to examine the usual range of alternatives as the actual undertaking has been defined by the initiative. If this is the case, the project documentation should outline the rationale for not examining alternatives and the extent to which any previous planning supports the provincial government priority initiative.

If a proponent chooses to rely on previous planning work to limit the discussion of alternatives, then the rationale for doing so must be evaluated for its appropriateness, relevance and accuracy as it relates to provincial plans, policies and interests (for example, Provincial Policy Statement, Growth Plans under the Places to Grow Act, 2005).

While the option to rely on previous planning work to limit the discussion of alternatives to is available to proponents, it is not mandatory. Proponents may still choose to examine a broader range of alternatives to, if it is more appropriate to do so in the particular circumstances.

Any pre-planning work that focuses alternatives needs to be documented in the terms of reference in a transparent and logical manner, so that it is clear what criteria were used and the nature of the evaluation that was conducted that led to that decision-making and the consultation conducted in respect of this pre-planning. The documentation should clearly identify how similar provisions to those of the Environmental Assessment Act were part of this pre-planning process. These details need to be included in the terms of reference itself with appropriate supporting documentation.

The key is that the range and type of alternatives included by the proponent in the terms of reference can vary as long as the justification provided ensures that the terms of reference will produce an environmental assessment that enables the Minister to make an informed decision about the proposed undertaking.

Rationale for alternatives

In the terms of reference, the statement of the rationale for the alternatives that will be examined in the environmental assessment should be provided to assist the Minister in determining whether the terms of reference is consistent with the purpose of the Environmental Assessment Act and the public interest (protect the environment, provide societal benefits). If the alternatives have not been identified, the terms of reference should make a commitment to provide the rationale for the alternatives in the environmental assessment. In the supporting documentation, more explanation about the rationale behind why certain alternatives were chosen for further consideration and other possible alternatives were eliminated from consideration can be included.

Description of the environment and potential effects (5.2.6)

The terms of reference should contain a brief or preliminary description of the existing environment in order to gain a contextual understanding of the problem or opportunity as well as an understanding of the potential environmental effects that should be examined. Before the existing environment is described, a study area must be defined.

Study area

The study area is the area within which activities associated with the undertaking will occur and where potential environmental effects will be studied. While it is preferable that the study area remain the same for all alternatives, it may vary depending on the alternatives being considered. Care should be taken when defining the study area so that a reasonable range of alternatives can be examined. The study area may be further defined in the environmental assessment when more detailed information is known and the alternatives to be considered have been determined. A map of the study area should be included (on its own 8.5 inches by 11 inches page) within the terms of reference. There may be circumstances where because of the nature of the undertaking, its location is already known. If this is the case, the location of the undertaking should be clearly shown on the map.

Description of the environment

Once the study area is defined, the environment within that area can be described. The description of the environment will address all components of the environment that are included in the Environmental Assessment Act definition. That includes a general description of the social environment, cultural environment, economic environment, built environment and natural environment. Generally, each “environment” is broken down into its component parts, though some overlap between the different environments is possible. For example, in a description of the natural environment, at minimum, geology, hydrogeology and biology will be described. For the social environment, a proponent may describe the characteristics of people living in the study area, the community and recreation features, and community character. The preliminary description of the environment should be sufficiently detailed to allow the Government Review Team to determine whether the proposed studies will meet the information requirements of the particular agency. A final and more detailed description of the environment is not required for the terms of reference but will be required in the environmental assessment. The requirement to provide the final detailed description in the environmental assessment should be noted in the terms of reference.

The terms of reference should include a list and brief explanation of the tools (for example, studies, tests, surveys, mapping) that will be used to provide a more detailed description of the environment in the environmental assessment. This list will not preclude the proponent from conducting additional or more detailed studies as part of the environmental assessment. If the proponent intends to use or may potentially use existing studies to supplement the description of the environment in the environmental assessment, this intention must be clearly stated in the terms of reference.

Potential effects

The environment that is described is the environment that is potentially affected by the proposed undertaking and its alternatives. The environmental assessment will need to examine the potential effect of the alternatives and the undertaking on all components of the environment. Potential effects can be positive or negative, direct or indirect, short- or long-term. The actions necessary to change, mitigate or remedy any environmental effects will be required in the environmental assessment. The environmental assessment should also attempt to examine the interrelationships between components of the environment and the undertaking and its alternatives, for example, how the project could interrelate with a changing climate over time.

The requirement to examine potential environmental effects and measures to manage any potential environmental effects must be reflected in the terms of reference. The proponent should also consider whether there could be environmental effects resulting from effects of the proposal combined with effects of other past and future undertakings. The proponent may wish to include in the terms of reference a preliminary list of the potential environmental effects. However, the actual determination of environmental effects, or the actions necessary to manage any effects, are not needed for the terms of reference, but will be required for the environmental assessment.

Assessment and evaluation (5.2.7)

In order to identify the undertaking for which Environmental Assessment Act approval will be sought, the proponent must conduct a systematic evaluation of the alternatives. The list below generally outlines the steps in an evaluation process. In this situation, alternatives to and alternative methods will be examined. The example given is for illustrative purposes only and proponents are expected to develop a process, which is suited to their particular study.

In order to evaluate the alternatives, criteria, indicators and methods must be developed. As much as possible, this should be done in the terms of reference. Detailed reasons for the selection of criteria, indicators and methods are not needed in the terms of reference. Such detail could be included in the supporting documentation, and then provided in the environmental assessment when it is prepared. However, sufficient information about them, or how they will be developed, should be given in the terms of reference to ensure that they can be understood by interested persons who are then able to provide informed comments.

Criteria and indicators

The proponent should develop criteria to assess the effects of the alternatives and the undertaking on the environment and present the criteria in the terms of reference.

The preliminary list of criteria is to be linked as much as possible to each component of the environment (such as criteria for the natural, social, economic and cultural environments) as the effects of the alternatives and the undertaking on the environment will need to be described in the environmental assessment. As required, each criterion should have one or more indicators that will identify how the potential environmental effects will be measured for each criterion. There is no minimum number of criteria or indicators, as that is very much dependent on the scale of the proposal and the environment potentially affected.

The criteria developed for the evaluation of alternatives to may be more general than the criteria developed for alternative methods. The criteria tend to get more specific as a proponent moves from the alternatives to evaluation to the alternative methods evaluation. Also, the level of detail at which alternatives are evaluated will normally increase as the proponent proceeds through the planning process. As more information is acquired about the potential environmental effects and the areas of concern to interested persons, it may result in more detailed criteria or produce changes in criteria. The criteria and indicators identified at the terms of reference stage should be considered preliminary and the terms of reference should clearly state that the criteria and/or indicators may change and will be further refined in the environmental assessment. In the environmental assessment, justification for any change to the criteria or indicators outlined in the terms of reference will need to be provided.

There may be circumstances where the proponent is unable to list any criteria in the terms of reference. If this is the case, the reasons why there are no criteria in the terms of reference, the manner in which the criteria will be developed at the environmental assessment stage, and a commitment to develop them in consultation with interested persons at that time, must be stated in the terms of reference.

In the terms of reference, the proponent should also state the potential data sources for the criteria and indicators. Government ministries and agencies should be consulted to determine whether there are any policies, guidelines, standards or methods that should be followed. Local community organizations are also great sources of data. The chart below gives examples of potential criteria, indicators and data sources for the different “environments”.

Evaluation method(s)

The next step in the evaluation process is the identification of a method or methods that will be used to assess:

• The potential environmental effects;
• Impact management measures;
• Net effects;
• Advantages/disadvantages

of the alternatives (both alternatives to and alternative methods, as applicable) and the undertaking on the environment. The evaluation method(s) chosen must be able to produce an assessment that is clear, logical and traceable. A clear, logical and traceable assessment is one in which anyone with the same information could reach the same conclusion without any additional assumptions. The terms of reference should either identify the method(s) to be used and the reason for its selection or outline the general parameters that will be used to identify the method(s) in the environmental assessment.

Commitments and monitoring (5.2.8)

The proponent will include in the terms of reference a statement that the environmental assessment will include a comprehensive list of commitments made by the proponent during the terms of reference process, and where or how they have been dealt with in the environmental assessment. A commitment will also be made in the terms of reference to include in the environmental assessment a comprehensive list of commitments made by the proponent during the preparation of the environmental assessment. These include all commitments relating to:

• Impact management measures (such as, mitigation measures);
• Additional works and studies to be carried out;
• Monitoring;
• Public consultation and contingency planning;
• Documentation and correspondence.

The terms of reference should include a commitment to develop a monitoring framework during the preparation of the environmental assessment. The monitoring framework will consider all phases of the proposed undertaking (planning, detailed design, tendering, construction, operation, closure and decommissioning).

Where appropriate, this framework must include the following types of monitoring:

• Compliance monitoring; and,
• Effects monitoring.

Compliance monitoring is an assessment of whether an undertaking has been constructed, implemented and/or operated in accordance with the commitments made in the environmental assessment and the conditions of the Environmental Assessment Act approval. The environmental assessment will need to provide a strategy that sets out how and when all commitments made in the environmental assessment will be fulfilled and how the proponent will report to the ministry about compliance.

Effects monitoring consists of activities carried out by the proponent after approval of the undertaking to determine the environmental effects of the undertaking.

Consultation plan for the environmental assessment (5.2.9)

Consultation with interested persons during the preparation of the environmental assessment is mandatory (section 5.1 of the Environmental Assessment Act). The terms of reference shall include a plan that outlines the consultation activities that, at a minimum, will take place during the preparation of the environmental assessment. The persons to be consulted include the Government Review Team, local municipalities and interested persons, including any potentially affected Aboriginal communities. At a minimum, those persons who declared an interest in the proposal during the terms of reference stage should be consulted during the environmental assessment stage.

The consultation plan should outline: the general consultation methods proposed; how input from interested persons will be obtained; a description of key decision-making milestones during the preparation of the environmental assessment when consultation will occur (for example, when the preferred alternative is chosen); and, an issues resolution strategy. It is not recommended that a very specific dated schedule be included in the consultation plan. This schedule can be further developed during the environmental assessment stage when it is clearer how the planning process is progressing.

In choosing the most appropriate level of consultation, the proponent should consider the complexity of the proposed undertaking, the level of potential concerns and controversy, and the extent of the potential environmental effects of the proposed undertaking. The ministry’s Code of Practice entitled, Consultation in Ontario’s Environmental Assessment Process, will give proponents further guidance in developing a consultation plan.

Applicants should include a consultation plan with their terms of reference outlining the consultation opportunities and with whom they intend to consult during the preparation of the environmental assessment. The consultation plan should also include how consultation is to take place with potentially affected Aboriginal communities. Applicants should consider flexibility, additional time needed to review documents and the unique needs of Aboriginal communities when designing a consultation plan including language, remoteness, communication styles/preferences and access to communication tools.

Providing flexibility to accommodate new circumstances (5.2.10)

Subsection 6.1(1) of the Environmental Assessment Act states that the environmental assessment must be prepared in accordance with the approved terms of reference. Proponents should be aware that circumstances may arise that could prevent the commitments in the terms of reference from being met. As the terms of reference cannot be amended after it has been approved by the Minister, it is important that flexibility be incorporated when preparing the terms of reference to accommodate new circumstances. This is particularly useful when few details about the proposal are known at the terms of reference stage.

The terms of reference can be as flexible or prescriptive as the proponent chooses, provided that the terms of reference is consistent with the purpose of the Environmental Assessment Act and the public interest. The purpose of building flexibility into the terms of reference is not to allow proponents to completely change the scope of their study at the environmental assessment stage but rather, to allow proponents to adjust aspects of their proposal without having to start the process over again.

An example of flexibility is when the terms of reference states that the description of the undertaking provided is preliminary and will be finalized in the environmental assessment. Flexibility in the terms of reference will also allow a proponent to refine such things as the study area, criteria and alternatives as input is provided during the preparation of the environmental assessment.

If the terms of reference does not provide flexibility and the need for significant changes are identified at the environmental assessment stage, a new terms of reference must be prepared. Although a new terms of reference can incorporate some or all of the work done for the earlier terms of reference, it will still require processing in accordance with the Environmental Assessment Act before it can be approved and will delay the proponent in moving forward.

Other approvals required (5.2.11)

Through consultation with the Government Review Team, the proponent may be able to determine what other approvals may be required for their proposal. If the nature of the undertaking is not known, then the commitment to outline the other required approvals in the environmental assessment should be made in the terms of reference.

The Government Review Team can assist a proponent in determining what other approvals may be required for their proposal. At the terms of reference stage, the list will be considered preliminary.

If some of the other approvals that will be required to make the proposed undertaking operational is known, these other approvals should be outlined in the terms of reference. For example, a linear facility (highway, transit line, transmission line) that crosses a waterway listed as navigable, may require approval from Transport Canada.

If approval is required for several pieces of legislation administered by the ministry, proponents are encouraged to submit documentation that would fulfil the requirements of all the applicable legislation (for example, a joint Environmental Assessment Act, Environmental Protection Act and Ontario Water Resources Act submission for large landfill undertakings). Proponents should discuss with the Project Officer the benefits of doing this. Proponents should be aware that approval under the Environmental Assessment Act comes first and that approval under one legislation does not guarantee approval under another.

Canadian Environmental Assessment Act

Another approval that may be required is approval under the Canadian Environmental Assessment Act, 2012, if for example the proposed undertaking is a new highway that passes through a national wildlife area or is a new facility that treats hazardous waste. Canada and Ontario have committed to work closely to coordinate their environmental assessment requirements and have signed an agreement stating such. The basic premise for the coordination of projects is “one project – one assessment” in order to address federal and provincial environmental assessment requirements. Proponents should contact the Branch if there is the possibility that the Canadian Environmental Assessment Act, 2012 may also apply to their proposal.

Other components (5.3)

The other components to accompany the terms of reference are a Record of Consultation, and if applicable, supporting documentation. Both of these are stand-alone documents that will be reviewed when determining whether the terms of reference should be approved, but are not specifically subject to approval by the Minister.

Record of consultation (5.3.1)

Section 5.1 of the Environmental Assessment Act states that consultation with “such persons as may be interested” should take place during the preparation of the terms of reference. Section 6(3) of the Environmental Assessment Act also requires a proponent to describe this consultation and the results. The proponent will record this information in a document known as the Record of Consultation.

The Record of Consultation will:

• Identify all persons consulted during the terms of reference preparation (personal names not required) and how they were identified;
• Describe the consultation activities which took place (methods, schedule of events, notification that was given about the activity and materials used);
• Describe how interested Aboriginal communities were identified and how they were consulted;
• Clearly and accurately summarize the comments made by all interested persons during the preparation of the terms of reference;
• Describe the proponent’s response and how concerns were considered in the development of the terms of reference;
• Describe any outstanding concerns;
• Include minutes of any meetings held with interested persons;
• Include copies of written comments received from interested persons.

The proponent will present a summary of the comments received and its responses to those comments in a table. As appropriate, the table should note where in the terms of reference the comment has been addressed. Comments from the general public should be arranged by type (for example, put all water quality comments together). For the Government Review Team and Aboriginal communities, the comments should be organized by agency and community rather than by issue type.

Supporting documentation (5.3.2)

The purpose of supporting documentation is to provide more detailed information that will assist the Minister and other persons in understanding the planning process that the proponent carried out in order to arrive at the proposal.

Information contained in the supporting documentation should support the proponent’s proposal by providing justification for the choices made and details of processes or methods used. For example, the supporting documentation could include:

• A more detailed description of the problem or opportunity that prompted the proposed study;
• Information about studies or events that triggered the proponent’s involvement with the proposed study;
• Background information supporting the selection of alternatives for further study;
• Business profiles (for private sector proponents).

This information can be organized by chapters (for each topic) or with tabs separating each topic. Reference to the part of the terms of reference which is being explained in more detail should be made. Likewise, the terms of reference should cite references to the supporting documentation.

Draft terms of reference (5.4)

There is no legal requirement to prepare and allow review of a draft terms of reference, but the ministry strongly suggests that a proponent do so. As the Environmental Assessment Act requires consultation with all interested persons, preparation and review of a draft terms of reference is one method that a proponent can use to fulfil its consultation obligations.

The draft terms of reference must be clearly written. Use of jargon should be limited. It needs to contain sufficient information so that the expert and the lay reader can understand the planning process to be followed for the environmental assessment. Detailed technical information should be provided in the supporting documentation. It is important to cross- reference information so that all readers can find specific information in the terms of reference and supporting documentation. If available for review, the draft terms of reference should be accompanied by the Record of Consultation and any supporting documentation.

The Project Officer will ask the proponent for a draft terms of reference for the ministry’s review. The Project Officer will lead the ministry’s internal review of the draft terms of reference. The Project Officer will review the draft terms of reference to ensure that it is complete and meets the requirements outlined in this Code before requesting sufficient copies for distribution to the ministry’s technical review team. The Project Officer conducts this preliminary review since the ministry technical reviewers only review one draft so it is important that the version being reviewed is as complete as possible. The Project Officer may suggest changes or request that additional work be done before the draft terms of reference is sent for review by the ministry technical reviewers.

The proponent is responsible for consulting with all other interested persons. Government reviewers are not obligated to review a draft document and will not necessarily respond to an unexpected request to review the draft terms of reference by a particular deadline. Proponents should contact (phone, e-mail) each prospective reviewer to discuss the conditions under which a review can be conducted before sending them the draft terms of reference for review. The proponent should discuss with the reviewer the reasons for requesting a review, what information the reviewer needs to do a proper review, and the amount of time that will be needed for the review. As required, a copy of the draft terms of reference and accompanying materials should be sent to each interested member of the Government Review Team.

The proponent will send copies of the draft terms of reference and any other relevant materials to any interested Aboriginal community for its information and comment. Contact should be made with each interested community before the draft document is sent (follow similar process to that of the Government Review Team).

The proponent will also make sufficient copies available in hard copy in publicly accessible locations to allow other interested persons the opportunity to comment on the document. This will give the proponent an early opportunity to respond to any concerns. A copy of the draft terms of reference and accompanying materials is also to be placed on the project website maintained by the proponent.

It is important that notice of the availability of the draft terms of reference be given to the general public in an accessible forum (for example, newspaper, direct mail, website). A minimum of thirty days should be provided for inspection of the draft terms of reference. For undertakings where there is great interest, it is the ministry’s expectation that the proponent will provide more than thirty days for inspection of the draft terms of reference. Though strongly encouraged, the circulation of a draft terms of reference is not a ministry requirement, therefore, it is up to the proponent to determine how much review time should be given. The nature, scale and potential interest in the proposal should be considered in the proponent’s determination.

All comments about the draft terms of reference are to be sent directly to the proponent and copied to the Project Officer for information only. Comments sent only to the ministry will be forwarded to the proponent for the proponent to consider. The Project Officer will forward all ministry comments to the proponent. The proponent is responsible for identifying and resolving (or attempting to resolve) any issues raised. As required, the proponent will revise the draft terms of reference to address issues before a final copy is submitted to the ministry for approval. The Record of Consultation must be updated to reflect the results of the consultation about the draft terms of reference.

Submission of the proposed terms of reference (6.0)

Preparing for submission (6.1)

Once the proponent determines that the terms of reference is suitable for submission to the Minister of the Environment, Conservation and Parks for a decision, it should discuss submission requirements with the Project Officer.

The proponent must notify the Project Officer at least three weeks before it intends to formally submit its proposed terms of reference so that a submission date can be established. The Project Officer will ask the proponent to prepare a Terms of Reference Summary Form and a Notice of Submission. Please see Appendix C for a copy of the Summary Form, and a suggested template for the Notice of Submission. The Summary Form is also found electronically on the environmental assessment page of the ministry’s website.

The final Terms of Reference Summary Form must be submitted to the Project Officer (hard and electronic copies) at least two weeks before the formal submission date of the terms of reference. The Terms of Reference Summary Form provides information about the proponent and its proposed undertaking. The information from this form is used by the Project Officer to create a posting that is placed on the environmental assessment page of the ministry’s website.

Sections 6(3.1) to 6(3.4) of the Environmental Assessment Act require that the proponent give notice about the submission of the proposed terms of reference to the public and the clerk of each municipality in which the proposed undertaking may be carried out. To meet these requirements, the Project Officer will ask the proponent to prepare and submit the Notice of Submission for his or her review at least two weeks prior to the formal submission date. The Notice of Submission shall include:

• a brief description of the proposal,
• a location map,
• places where the terms of reference can be viewed,
• by when and to whom comments about the terms of reference can be made, and,
• Statements that must be included for example, Freedom of Information and Protection of Privacy Act information.

Generally, the terms of reference is available for viewing at the Branch, the local ministry office, municipal offices and public libraries. Thirty days is given for the review of the terms of reference. Comments are to be made directly to the Project Officer.

The Notice shall be given on or just before the start of the formal terms of reference review process. The clerk of each municipality in which the proposed undertaking may take place must receive a copy of the Notice. Where possible, the Notice of Submission will be posted in a local newspaper in the study area. If there has been significant public interest in the proposal, the proponent may be directed by the Project Officer to post the Notice in a newspaper more than once, or to directly notify all persons who have participated in the process thus far. If the study area is large, then postings in multiple newspapers may be necessary. Where it is not possible to post the Notice in a newspaper, the proponent should discuss with the Project Officer alternate posting arrangements. The proponent will also post the Notice and the complete terms of reference submission on the website it has been maintaining for the proposal. As these are minimum notice requirements, the proponent can provide notice in other ways as well (for example, posters placed in a central location, direct mailing, media advertisements).

The proponent must ensure that the Government Review Team and the public viewing locations as outlined in the Notice of Submission receive the proposed terms of reference submission before the start of the formal review period. A copy of the Notice of Submission should be placed with the proposed terms of reference submission at the public record locations so it will be clear when, where and to whom comments are to be sent.

Terms of reference submission (6.2)

The proponent shall submit a sufficient number of copies of the proposed terms of reference, in hard copy, to the ministry at least one week before the formal review period is to begin. An electronic version should also be submitted. Copies of the proposed terms of reference are distributed by the Project Officer to the ministry’s technical review team and interested Aboriginal communities. A cover letter addressed to the Director of the Environmental Assessment Branch (attention Project Officer) stating that the proposed terms of reference is being formally submitted must be sent with the terms of reference. Also, according to subsection 6(3) of the Environmental Assessment Act, the proposed terms of reference must be accompanied by the Record of Consultation. Any supporting documentation must also be submitted at the same time. Ideally, the terms of reference, the Record of Consultation and the supporting documentation will be submitted as separate volumes. If they are all submitted as one document, the cover letter to the Director should clearly state that only the terms of reference is being submitted for the Minister’s approval.

Review of the proposed terms of reference (7.0)

Interested persons (7.1)

In accordance with the Deadlines Regulation (Ontario Regulation 616/98), once the proposed terms of reference is submitted, the review and decision period lasts for 12 weeks. The Minister’s decision is due at the end of those twelve weeks. All interested persons (general public, Aboriginal peoples, government agencies) may inspect and provide comments about the proposed terms of reference during the first 30 days.

The 30-day review period is an opportunity for interested persons to provide comments about components of the proposed terms of reference with which they agree or do not agree. Comments must be specific and relate to a component(s) of the proposed terms of reference, such as the proposed study area, range of alternatives to be considered or the evaluation methodology. Any potential solutions to the issues raised should also be outlined.

All comments should be sent directly to the Project Officer identified in the Notice of Submission. Comments must be in writing and can be sent by mail, e-mail or fax. Contact information (clearly state name and address) must be included in the submission so that its receipt can be acknowledged. If the public engages in a write-in campaign or organizes a petition, or there are a large number of submissions, individual acknowledgements may not be sent. In the case of a write-in campaign or petition, if there is an organizing body clearly identified, then an acknowledgement may be sent to that body.

Each member of the Government Review Team, including ministry technical reviewers, will conduct its own review of the proposed terms of reference submission from the perspective of its own mandate. Any comments should be sent directly to the Project Officer.

The Project Officer will examine whether the consultation during the preparation of the proposed terms of reference appropriately identified and dealt with all interested persons, including Aboriginal peoples. Where it is not clear this has been done adequately, the Project Officer will advise what additional steps may be required by either the proponent or the Crown.

The Project Officer will review any comments received during the 30-day review period then forward them to the proponent for a response. The proponent is responsible for responding to all the comments that were received. The summary of the comments and the proponent’s responses should be presented in a table. Comments from the general public will be arranged by type (for example, put all water quality comments together). For the Government Review Team and Aboriginal communities, the comments will be organized by agency and community rather than by issue type.

The comments received, and the proponent’s responses to them, will be presented to the Minister by the Project Officer and will be considered when the decision is made about the proposed terms of reference.

If there are substantive issues identified during the review period that have not been adequately addressed in the proposed terms of reference, the Project Officer will inform the proponent that changes to the document may be required. In response, the proponent may choose not to make the changes, withdraw the proposed terms of reference, or make amendments to the proposed terms of reference. The proponent must notify the Project Officer in writing as to its intended course. This notification must be received before the deadline for the Minister’s decision. If the proponent chooses not to make changes, the proponent runs the risk that the document may not be approvable. If the proposed terms of reference is withdrawn, the proponent may either make a new submission or abandon the proposal altogether.

Amendments to the proposed terms of reference (7.2)

The normal course of action for a proponent when the Project Officer suggests that revisions are required is to take the time to amend the proposed terms of reference. Potential amendments may include, but are not limited to:

• corrections to factual information;
• administrative changes;
• altering a method of conducting a component of the undertaking that will not change the purpose or intent of the original submission;
• new study requirements;
• providing additional information;
• the need for additional consultation.

If the proponent plans to amend the proposed terms of reference, written notification must be sent to the Project Officer by a mutually agreed-upon date. Failure to notify the Project Officer will mean that the proposed terms of reference will be processed in its unamended form and submitted to the Minister for a decision.

The Deadlines Regulation allows a proponent up to eight weeks to make amendments to the proposed terms of reference. The date the ministry receives written notification of the intent to amend the terms of reference triggers the start of the eight-week period. The proponent is responsible for making any necessary amendments and consulting only those persons who may be affected by the proposed amendments during the eight-week period. The amended terms of reference and an updated Record of Consultation must be submitted once the process is complete.

The suspension of the timelines comes to an end once the eight weeks has passed or the amended terms of reference is submitted to the Project Officer, whichever occurs first. If the amended terms of reference is not received by the end of the eight-week period, the Minister will proceed to consider the proposed terms of reference as it was originally submitted. If the proponent feels that the amendments, and the consultation about them, cannot occur within the eight-week period, the proponent should withdraw the proposed terms of reference, rather than run the risk that the document as originally submitted is not approvable.

Ministry recommendation (7.3)

Following the end of the 30-day review period, and if applicable, after an amended terms of reference is submitted, the Project Officer will evaluate the proposed terms of reference submission and prepare a recommendation for the Minister. The comments received and the proponent’s responses to them will also be reviewed. When evaluating the proposed terms of reference submission, the Project Officer will consider, at a minimum, the following:

• Did the proponent meet the legislative requirements of the Environmental Assessment Act?
• Did the proponent meet the expectations set out in the ministry’s Codes of Practice?
• Is the proposed terms of reference written in plain language that is clear and concise?
• Does the proposed terms of reference identify under which subsection of the Environmental Assessment Act the environmental assessment will be prepared?
• Did the proponent identify and consider the concerns raised during the preparation of the proposed terms of reference?
• Have comments received during the review of the proposed terms of reference been adequately considered by the proponent?
• Does the proposed terms of reference and if applicable, the supporting documentation, provide sufficient information to allow the Minister to approve the terms of reference?
• Does the Record of Consultation contain sufficient information about the consultation that took place during the preparation of the proposed terms of reference?
• Would an environmental assessment prepared in accordance with the proposed terms of reference be consistent with the purpose of the Environmental Assessment Act and the public interest?

Minister’s decision about the proposed terms of reference (8.0)

Decision options (8.1)

Subsection 6(6) of the Environmental Assessment Act states that the Minister must notify the proponent about whether the proposed terms of reference is approved and must do so by the prescribed deadline. The deadline for the Minister’s decision is 12 weeks from the start of the review period. If there are outstanding issues, the Minister may refer the matter to mediation before making a decision. In that event, the twelve-week decision deadline is no longer applicable. The decision would be due seven weeks after receipt of the mediator’s report.

There are three decisions the Minister could make about the proposed terms of reference. The Minister may approve the terms of reference, amend and approve the terms of reference, or reject the terms of reference. In making a decision to approve or amend and approve the terms of reference, the Minster must consider the ministry’s Statement of Environmental Values and be satisfied that an environmental assessment prepared in accordance with the approved terms of reference will be consistent with the purpose of the Environmental Assessment Act and the public interest (subsection 6(4) of the Environmental Assessment Act). In coming to this decision, the Minister will consider the proposed terms of reference, the comments made about the terms of reference and the proponent’s responses to them, the staff recommendation, and if applicable, a mediator’s report. There is no mechanism available under the Environmental Assessment Act to appeal the Minister’s decision about the terms of reference.

Notification of the Minister’s decision (8.2)

After the Minister makes a decision about the proposed terms of reference, the proponent will be notified directly by the Minister and provided with written reasons for the decision. While the ministry makes every effort to render a decision in a timely manner, there may be times when a decision is not made by the prescribed deadline. Subsection 10(4) of the Environmental Assessment Act states that the Minister’s decision is not invalid solely on the basis that it is not made by the applicable deadline. The proponent is advised not to begin preparation of the environmental assessment until a decision about the proposed terms of reference is made by the Minister.

The Project Officer will notify members of the public, who submitted comments during the comment period and provided a current mailing address, of the Minister’s decision. The Project Officer will also provide notification of the Minister’s decision to Aboriginal communities and those members of the Government Review Team who provided comments. When a large number of submissions are received, the ministry may determine that it is not practical to notify each person individually and will provide some form of community notification, such as a newspaper posting. In addition, the environmental assessment page of the ministry’s website will be updated to reflect the Minister’s decision.

Moving on past the terms of reference stage (8.3)

If the Minister approves the terms of reference or amends and approves the terms of reference, the proponent can begin preparing an environmental assessment. Proponents should be aware that the environmental assessment must be prepared in accordance with the approved terms of reference, including any amendments made by the Minister.

Approval of the terms of reference does not mean that the final undertaking will be approved. Approval of the terms of reference just gives the proponent the authority to proceed with the environmental assessment to determine the feasibility of its proposal.

If the Minister decides not to approve the terms of reference, the proponent may choose to either abandon the proposal or submit a new terms of reference. As there are reasons given with the Minister’s decision, these reasons should be taken into consideration by a proponent in making the decision about whether to restart the environmental assessment process.

Other matters (9.0)

Public record (9.1)

According to section 30 of the Environmental Assessment Act, the Director must maintain a record for each proposed undertaking for which an application for approval under the Environmental Assessment Act is submitted. The record is maintained at the Branch and is usually available within 24 hours of it being requested by any person.

The public record file must contain the proposed and the approved terms of reference, all notices given, the Minister’s decision, and such other documents as the Minister or Director considers appropriate. As a matter of practice, the Branch also includes all information submitted by the proponent during the preparation and review of the terms of reference and all comments received by other interested persons during the preparation and review of the terms of reference.

Considering the needs of Francophone communities (9.2)

The ministry is committed to consulting and communicating in French with Francophone individuals, organizations, municipalities and communities in or near the 25 bilingual areas (Ontario Office of Fracophone Affairs) designated under the French Language Services Act.

While there is no statutory requirement for proponents to specifically engage the Francophone community, the ministry expects all members of the public to be adequately consulted and engaged during the environmental assessment process. The Environmental Assessment Act requires that a proponent consult with any person who is interested.

Accordingly, in conjunction with this Code, proponents should:

• Note that the Francophone population is included in the definition of interested persons,
• Follow the guidelines related to consultation and communication with Francophones outlined in the Code of Practice: Consultation in Ontario’s Environmental Assessment Process.

This Code of Practice is intended to provide proponents and other interested persons with an understanding of how to prepare a terms of reference and how it is reviewed by the ministry. Specific questions about a terms of reference for a particular undertaking should be referred to the Project Officer assigned to the proposed undertaking.

Those interested in information about Ontario’s environmental assessment process should consult the Ministry of the Environment, Conservation and Parks’ website or contact the ministry at the address below to obtain process, consultation and mediation guidance.

Ministry of the Environment, Conservation and Parks
Client Services and Permissions Branch
135 St. Clair Avenue West, 1^st Floor
Toronto, Ontario M4V 1P5

• Tel: 416-314-8001
• Toll-free: 1-800-461-6290
• Fax: 416-314-8452
•  enviropermissions@ontario.ca
• Website: Ontario Environmental Assessments

In addition, the ministry has guidance materials for the following key elements of the environmental assessment process:

• Class environmental assessments
• Climate effects (draft)
• Consultation
• Coordinating federal and provincial environmental assessment requirements
• Electricity projects
• Environmental assessments
• Glossary
• How to make a Part II Order request
• Making a hearing request
• Mediation
• Transit projects
• Waste management projects

Appendix A: Environmental assessment process timelines

1. Proponent consults during terms of reference (ToR) preparation.
2. Proponent submits ToR to the ministry.
3. Government and public review the ToR.
4. The minister makes a decision to either reject or approve the ToR.
   1. If the ToR is rejected, the proponent must decide to either abandon the project or resubmit the ToR (step 2).
   2. If the ToR is approved, the proponent consults during environmental assessment (EA) preparation.
5. Proponent submits EA to the ministry.
6. Government and public review the EA. The Director may issue a Deficiency Statement. If the deficiencies are not remedied, the Minister may reject the EA.
7. The ministry issues a Notice of Completion of Ministry Review of EA.
8. The public inspects the Ministry Review (final).
9. The Minister has three options:
   1. Refer all or part of application to the Tribunal
   2. Make a decision
   3. Refer to mediation
10. If the Minister refers to the Environmental Review Tribunal (Hearing), the Minister has 28 days in which he or she may review the Tribunal decision. The Tribunal has the same decision options as the Minister (approve, approve with conditions, or refuse).
11. If the Minister makes a decision, he or she will either approve, approve with conditions, or refuse the EA. Referred mediation is most likely to occur at this point, but may occur any time after step 6.
12. If the Minister refers to mediation, the Minister shall consider the mediator’s report when making a decision to either approve, approve with conditions, or refuse the EA.

Note: Self-directed Mediation may occur at any time. The Minister may refer an environmental assessment application to mediation (referred mediation) any time during the environmental assessment process (60 days maximum).

Prescribed deadlines (Ontario Regulation 616/98)

• Steps 2-4: 12 weeks
• Step 6: 7 weeks
• Step 7: 5 weeks
• Step 8: 5 weeks
• Step 9: 13 weeks

Appendix B: Government agencies and their areas of interest

This information is a subset of the Government Review Team list that is provided to proponents at the start of their planning process. This is for information only, and the particular agency or ministry must be contacted to determine if they have a mandated interest in the proposal.

Note: Municipalities and Aboriginal peoples, while not formally on the Government Review Team, are consulted about an environmental assessment application if it is located in their municipality or community or if it may affect their municipality or community as required by the Environmental Assessment Act.

Appendix C: Notification templates and summary form

Notice of Commencement of Terms of Reference Template (1)

Notice of Submission of Terms of Reference Template (2)

Terms of Reference Summary Form (3)

To download the Terms of Reference Summary Form, please visit the Ontario Central Forms Repository.

Appendix D: Regional/district/area offices of the Ministry of the Environment, Conservation and Parks

The regional/district/area offices are responsible for delivering programs to protect air quality, protect surface and ground water quality and quantity, manage the disposal of wastes, ensure an adequate quality of drinking water, and control the use of pesticides.

For a list of location and contact information for each region and associated district/area offices, please refer to the Ministry of the Environment, Conservation and Parks regional and district offices webpage.