1990 BILL 238 Second Session, 22nd Legislature, 39 EUzabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 238 ENVIRONMENTAL OMBUDSMAN ACT MR. MITCHELL Fkst Reading Second Reading Committee of the Whole Thkd Reading Royal Assent

Bill 238 Mr. Mitchell

Definitions BILL 238 1990 ENVIRONMENTAL OMBUDSMAN ACT (Assented to , 1990) HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as foUows: In this Act, (a) "agency" means any agent of the Crown and for the piu-poses this Act includes a Crown corporation and any provincial agency as defined in the Financial Administration Act; (b) "Envkoimiental Ombudsman" means the Commissioner for the Envkoimient appointed under this Act; (c) "consent" means any approval requked by a pubUc authority for any development as defined in the Planning Act and any other approval by a pubUc authority under any enactment for the doing of any thing which may affect the envkonment; (d) "contaminant" means any substance, whether gaseous, Uquid, or soUd that (

i) is foreign to or alters the balance of the natural constkuents of the envkonment into which k is introduced; zmd (

U) is or may be injurious to, or wUl or may adversely affect, the envkonment or the health or safety of persons or property; (e) "ecosystem" means any system of mteractmg terrestrial or

aquatic organisms within thek natiu-al and physical envkonment; (f) "envkonment" includes (

i) ecosystems and thek constituent parts; (

U) aU natural and physical resoiu'ces; and (iU) the social, economic, aesthetic, and cultural conditions which affect the envkonment or which are affected by changes to the envkonment; (g) "hazardous substance" means a hazardous chemical as defined by the Hazardous Chemicals Act, and any other inflammable, toxic, explosive, infectious, radioactive, or other substance which may impak human, plant, or animal health; (h) "local authority" has the meaning given to k m the Uxal Authorities Board Act; (i) "Minister" means a member of the Executive Council; (j) "natural hazard" means any atmospheric or earth or water related occurrence, including erosion, volcanic activity, landsUp, subsidence, sedimentation, fire or flooding, the action of which adversely affects or may adversely affect human life, property, or the envkonment; (k) "natural and physical resources" includes water, ak, soil, minerals, hydrocarbons, and energy, aU forms of flora and fauna, whether native to Alberta or introduced, and any buUding, structure machine, device, or other facUity made by people; (1) "poUution" means any process, whether natural or artificial, resulting in the introduction of any contammant into the envkonment, and includes ak poUution withki the meaning of the Clean Air Act, and noise; and "poUutant" has a corresponding meaning; (m) "pubUc authority" means (

i) a Mmister of the Crown; (

U) a Government department or agency; (iu) an instrument of the Executive CouncU; or

(iv) a local authority; (n) "Select Standmg Commktee" means the Select Standmg Committee of the Legislative Assembly on Legislative Offices. crSnlr°' 2(1) There shaU be appomted, as an officer of the Legislature, a commissioner for mvestigations to be caUed the Envkonmental Ombudsman.

(2) Subject to

section 7, the Lieutenant Governor m CouncU shaU appomt the Envkonmental Ombudsman on the recommendation of the Legislative Assembly. Qualifications 3(1) The Envkonmental Ombudsman may not be a member of the Legislative Assembly and shaU not hold any office of trust or profit, other than his office as Envkonmental Ombudsman, or engage m any occupation for reward outside the duties of his office. Resignation Removal

(2) The Envkonmental Ombudsman must be a Canadian ckizen. 4 Unless his office sooner becomes vacant, a person appointed as Envkonmental Ombudsman holds office for 5 years (

a) from the date of his appointment under

section 2, or (

b) from the date his appointment under

section 7 is confkmed under that section, and continue to hold office after the expiry of his term of office untU he is reappointed, his successor is appointed or a period of 6 months has expked, whichever occurs first. 5 The Envkonmental Ombudsman may at any time resign his office by writing addressed to the Speaker of the Legislative Assembly or, if there is no Speaker or if the Speaker is absent from Alberta, to the Clerk of the Legislative Assembly. 6(1) On the recommendation of the Legislative Assembly, the Lieutenant Governor in CouncU may, at any time, suspend or remove the Envkonmental Ombudsman from his office for disabiUty, neglect of duty, misconduct or bankruptcy.

(2) At any time the Legislature is not in session the Lieutenant Governor in CouncU, on the recommendation of the Select Standing Committee, may suspend the Ombudsman from office for disabiUty, neglect of duty, misconduct or bankruptcy, but the suspension shaU not continue in force beyond the end of the next ensuing session of the Legislature.

Vacancy j(

i) jf {hg Environmental Ombudsman dies, retkes, resigns or is removed from office, the vacancy created shaU be filled in accordance with this section.

(2) If a vacancy occurs whUe the Legislature is m session, but no recommendation is made by the Legislative Assembly before the close of that session, subsection (3) appUes as if the vacancy had occurred whUe the Legislature was not in session.

(3) If a vacancy occurs whUe the Legislature is not m session, the Lieutenant Govemor in Coimcil, on the recommendation of die Select Standing Committee, may appoint an Envkonmental Ombudsman to fiU the vacancy and unless his office sooner becomes vacant, the person so appointed holds office imtil his appointment is confirmed by the Legislative Assembly.

(4) If an appointment under subsection (3) is not confirmed within 30 days after the commencement of the next ensumg regular session, the appointment lapses and there shaU be deemed to be another vacancy in the office of Envkonmental Ombudsman. saiaiy g^j^ jj^g Envkonmontal Ombudsman shaU be paid a salary at a rate set by the Select Standing Committee and the Select Standing Committee shaU review that salary rate at least once a year.

(2) The Envkonmental Ombudsman shaU receive simUar benefits to those provided to Deputy Ministers. °^'^ 9(1) Before entermg on his duties, the Envkonmental Ombudsman shaU take an oath that he wiU faithfuUy and knpartiaUy perform the duties of his office and that he wUl not, except in accordance with

section 16(3) and (4) or

section 21, divulge any information received by him under this Act.

(2) The oath shaU be admmistered by the Speaker of the Legislative Assembly or by the Clerk of the Legislative Assembly. 10(1) There shaU be an office of the pubUc service of Alberta caUed the Office of the Envkonmental Ombudsman consisting of the Envkonmental Ombudsman and the employees appomted pursuant to the PubUc Service Act to assist the Envkonmental Ombudsman in the efficient carrying out of his functions under this Act.

(2) On the recommendation of the Envkonmental Ombudsman, the Select Standmg Commktee may order that

(

a) any regulation, order or dkective made under the Financial Administration Act, or (

b) any regulation, order, dkective, rule, procedure, dkection, aUocation, designation or other decision under the Public Service Act, be inappUcable to, or be varied m respect of, the Office of the Envkonmental Ombudsman or any particiUar employee or class of employees m the Office of the Envkonmental Ombudsman.

(3) An order made under subsection (2)(

a) m relation to a regulation, order or dkective made under the Financial Administration Act operates notwithstanding that Act.

(4) The Regulations Act does not apply to orders made under subsection (2).

(5) The chakman of the Select Standmg Commktee shaU lay a copy of each order made under subsection (2) before the Assembly if k is then sitting, or if k is not then sitting, within 15 days after the commencement of the next sitting.

(6) Every person holding an office or appointment under the Envkonmental Ombudsman shall, before he begins to perform his duties under this Act, take an oath, to be admmistered by the Envkonmental Ombudsman, that he wiU not divulge any information received by him under this Act except for the purpose of ^ving effect to this Act. Budget 11(1) The Envkonmental Ombudsman shaU submit annuaUy to the Select Standing Committee in respect of each fiscal year an estimate of the sum that wiU be requked to be provided by the Legislature to defray the several charges and expenses of the Office of the Envkonmental Ombudsman in that fiscal year.

(2) The Select Standing Committee shaU review each estimate submitted pursuant to subsection (1) and, on completion of the review, the chairman of the Committee shall transmit the estimate to the Provincial Treasurer for presentation to the Assembly.

(3) If at any time the Legislative Assembly is not in session the Select Standing Committee, or if there is no Select Standing Committee, the Provincial Treasurer. (

a) reports that the Envkonmental Ombudsman has certified that in the pubUc interest an expenditure of pubUc money is iwgently requked in respect of any matter pertaining to his office, and

(

b) reports that either (

i) there is no supply vote under which an expenditure with respect to that matter may be made, or (

U) there is a supply vote under which an expenditure with respect to that matter may be made but the authority avaUable imder the supply vote is insufficient, the Lieutenant Governor in CouncU may order a special warrant to be prepared to be signed by himself authorizing the expenditure of the amoimt estimated to be requked.

(4) When the Legislative Assembly is adjoumed for a period of more than 14 days, for the purposes of subsection (3), the Assembly shaU be deemed not to be in session during the period of the adjournment.

(5) When a special warrant is prepared and signed under subsection (3) on the basis of a report referred to in subsection (3)(b)(i), the authority to spend the amount of money specified in the special warrant for the purpose specified in the special warrant is deemed to be a supply vote for the purposes of the Financial Administration Act for the fiscal year in which the special warrant is signed.

(6) When a special warrant is prepared and signed under subsection (3) on the basis of a report referred to in subsection (3)(b)(U), the authority to spend the amount of money specified in the special warrant is, for the purposes of the Financial Administration Acty added to and deemed to be part of the supply vote to which the report relates.

(7) When a special warrant has been prepared and signed pursuant to this section, the amounts authorized by U are deemed to be included in, and not to be m addition to, the amounts authorized by the Act, not bemg

an Act for mterkn supply, enacted next after k for granting to Her Majesty sums of money to defi-ay certam expenditures of the PubUc Service of Alberta. 12(1) The functions of the Envkonmental Ombudsman shaU be (

a) with the objective of maintaining and knproving the quaUty of the envkonment, to review from tkne to tkne the system of agencies and processes estabUshed by the Govemment to manage the aUocation, use and preservation of natural and physical resources, and to report the results of any such review to the Legislative Assembly and to such other

bodies or persons as the Envkonmental Ombudsman considers appropriate; (

b) where the Envkonmental Ombudsman considers is necessary, to mvestigate the effectiveness of envkonmental planning and envkonmental management carried out by pubUc authorities, and advise them on any remedial action the Envkonmental Ombudsman considers deskable; (

c) to (

i) mvestigate any matter m respect of which, m the Envkonmental Ombudsman's opinion, the envkonment may be or has been adversely affected, whether through natural causes or as a result of the acts or omissions of any person or body, to an extent which the Envkonmental Ombudsman considers warrants investigation; and (

U) advise, where necessary, the appropriate pubUc authority and any other person or body the Envkonmental Ombudsman thinks appropriate of the preventive measures or remedial action which the Envkonmental Ombudsman considers should be taken; and (iu) report the results of the investigation to the Legislative Assembly; (

d) at the request of the Legislative Assembly or any select committee of the Legislative Assembly, to report to the Legislative Assembly or committee on any petition, BiU, or other matter before the Legislative Assembly or committee the subject matter of which may have a significant effect on the environment; (

e) on the dkection of the Legislative Assembly to inquke into any matter that has had or may have a substantial and damaging effect on the envkonment, and to report the results of the inquiry to the Legislative Assembly; (

f) to undertake and encourage the coUection and dissemination of information relating to the envkonment; (

g) to encourage preventative measures and remedial actions for the protection of the envkonment.

(2) For the purposes of any inquiry held under subsection (

e) of this section, the Envkonmental Ombudsman shaU have the same powers as are conferred on a commissioner under the Public Inquiries Act and the provisions of that Act shaU apply to aU

Consideration persons mvolved in any capacity in any such mquky as if it were an mquky conducted by a commissioner under that Act.

(3) The Envkonmental Ombudsman shaU have, m relation to any such inquiry, and any report on the results of the inquky, the same immunities and privileges as are possessed by a Judge of the Court of Queen's Bench in the exercise of the Judge's civU jurisdiction. 13 In the performance of the Environmental Ombudsman's functions the Environmental Ombudsman, where the Envkonmental Ombudsman considers it appropriate, shall have regard, in particular but not exclusively, to (

a) the maintenance and restoration of ecosystems of importance, espedaUy those supporting habitats or rare, threatened, or endangered species of flora or fauna; (

b) areas, landscapes, and structures of aesthetic, archaeological, cultural, historical, recreational, scenic, and scientific value; (

c) the effects on communities of people of (

i) actual or proposed chemges to natural and physical resources; (

U) the establishment or proposed estabUshment of new communities; (

d) whether any proposals, poUcies, or other matters, the consideration of which is within the Envkonmental Ombudsm£m's functions, are likely to (

i) result in or increase poUution; or (

U) result in the occurrence, or increase the changes of occurrence, of natural hazards or hazardous substances; or (Ui) have features, the envkonmental effects of which are not certam, and the potential knpact of which is such as to \yarrant further investigation in order to determme the envkonmental knpact of the proposal, poUcy, or otiier matter; or (iv) result m the aUocation or depletion of any natural and physical resources in a way or at a rate that will prevent the renewal by natural processes of the resources or wiU not enable an orderly transition to other materials;

(

e) aU reasonably foreseeable effects of any such proposed, poUcy, or other matter on the envkonment, whether adverse or beneficial, short term or long term, dkect or indkect, or cumulative; (

f) alternative means or methods of implementing or providing for any such proposal, poUcy, or matter m aU or any of its aspects, including the consideration, where appropriate, of alternative sites. 14(1) The Envkonmental Ombudsman shaU have such powers as may be necessary to enable the Envkonmental Ombudsman to carry out the Envkonmental Ombudsman's functions under this Act.

(2) The Envkonmental Ombudsman may from time to time requke any person who in the Envkonmental Ombudsman's opinion is able to give any information relating to any matter which is being investigated or inquked into by the Envkonmental Ombudsman to furnish to the Envkonmental Ombudsman any such information and to produce any documents or papers of things which in the Envkonmental Ombudsman's opinion relate to any such matter and which may be in the possession or under the control of that person.

(3) The Envkonmental Ombudsman may summon before the Envkonmental Ombudsman and examine on oath any person who in the Envkonmental Ombudsman's opinion is able to give any such information, and for that purpose may administer an oath.

(4) Any person who is bound by the provisions of any enactment to maint£un secrecy in relation to any matter or not to disclose zmy matter shaU not be requked to (

a) supply any information to the Environmental Ombudsman; or (

b) answer any question put by the Envkonmental Ombudsman; or (

c) produce any document, paper, or thkig to the Envkonmental Ombudsman if compUance with the requkement would be in breach of the obUgation of secrecy or non-disclosure.

(5) Every person shaU have the same privUeges m relation to the giving of information, the answerkig of questions, and the

production of documents and papers and things m accordance with this

section as witnesses have in any Court.

(6) Except on the trial of any person for perjury m respect of his or her swom testimony, no statement made or answer given by that or any proceedings before the Envkonmental Ombudsman shaU be admissible in evidence against any person in any court or at any inquiry or in any other proceedings, and no evidence in respect of proceedings before the Envkonmental Ombudsman shaU be given against any person.

(7) No person shaU be Uable to prosecution for an offence against any enactment, other than this Act, by reason of compUance with any requkement of the Envkonmental Ombudsman under tiiis section. 15(1) In any proceedings in any way relating to or arismg from the obtaining of, or any attempt to obtain, any consent, the Envkonmental Ombudsman (

a) shaU have the right to be present and be heard solely for the purpose of calling evidence on any matter, including evidence in rebuttal, that should be taken in account in determining the proceedings; (

b) may examine, cross-examine, and re-examine witnesses; (

c) may be represented by counsel or by any duly authorized representative but shaU have no greater rights than parties to the proceedmgs in respect of the calling of evidence or evidence in rebuttal, or in respect of the examination, cross-examination, and re-exammation of witnesses.

(2) Where the Envkonmental Ombudsman appears m any proceedings pursuant to any of the provisions of subsection (9) of this section, the court, tribunal, or other body before which those proceedings are conducted, where it has power to award costs to or against parties to the proceedings, may make such order as it thinks just (

a) as to the payment by any party to the proceedings of the costs kicurred by the Envkonmental Ombudsman m domg so; or (

b) as to the payment by the Envkonmental Ombudsman of any costs incurred by any party to the proceedings by reason of the Envkonmental Ombudsman's so doing; 10

(

c) where any costs are so awarded to the Envkonmental Ombudsman, the Envkonmental Ombudsman may recover them in the same manner as parties to the proceedings may recover costs awarded to them. 16(1) No report or recommendation of the Envkonmental Ombudsman and no investigation or other proceeding under this Act leading to a report or recommendation of the Envkonmental Ombudsman shaU be made the subject of (

a) an mquky under the Public Inquiries Act, or (

b) an inquiry, investigation, review or hearing by any person or body pursuant to any other Act. (2) Subsection (1) does not apply to an mquky, investigation, review or hearing conducted by (

a) the Legislative Assembly; (

b) a committee of members of the Legislative Assembly appointed by a resolution of the Legislative Assembly; (

c) a commissioner under the Public Inquiries Act, if a resolution of the Legislative Assembly authorized the Lieutenant Govemor in CouncU to make an order for the inquiry under that Act; or (

d) any other person or body appointed by a resolution of the Legislative Assembly and any resolution made under clause (b), (

c) or (

d) shaU prescribe the terms of reference of the inquiry, investigation, review or hearing.

(3) Notwithstanding

section 21 or any oath taken under

section 9 or 10 but subject to subsection (4), (

a) the Envkonmental Ombudsman or a former Environmental Ombudsman; or (

b) any person who holds or formerly held an office or appointment under the Envkonmental Ombudsman or a former Envkonmental Ombudsman, is a compeUable witness in any inquiry, investigation, review or hearing mentioned in subsection (2) in respect of matters that came to his knowledge in the course of the administration of this 11

Act.

(4) The Envkonmental Ombudsman or any other person mentioned in subsection (3) who is a witness in any inquiry, mvestigation, review or hearing mentioned m subsection (2) (

a) shaU not answer any question or be compeUed to answer any question; and (

b) shaU not produce or be compeUed to produce any document, paper or thing when the Envkonmental Ombudsman or counsel on his behalf objects on the ground that the answer, document, paper or thing relates to matters of a secret and confidential nature.

(5) When a former Envkonmental Ombudsman or any person who holds or formerly held an office or appointment under the Envkonmental Ombudsman or a former Envkonmental Ombudsman is summoned as a witness in an inquiry, investigation, review or hearing mentioned in subsection (2), the person who summoned that witness shaU forthwith give notice of that fact to the Envkonmental Ombudsman that is sufficient in the ckcumstances to enable him to appear and to make objections in respect of the witness's testimony pursuant to subsection (4). 17 No proceedings of the Envkonmental Ombudsman shaU be held bad for want of form and, except on the ground of lack of jurisdiction, and no proceedings or decision of the Envkonmental Ombudsman shaU be chaUenged, reviewed, quashed, or caUed in question in any court. 18(1) No proceedings Ue against the Envkonmental Ombudsman or against any person holding an office or appointment under the Envkonmental Ombudsman for any thmg he may do or report or say in the course of the exercise of thek functions.

(2) Subject to the provisions of

section 15(1), neither tiie Envkonmental Ombudsman nor any person holding an office or appointment under the Environmental Ombudsman shaU be caUed to give evidence in any court or in any proceedings of a judicial nature in respect of any thing coming to his knowledge m the exercise of his functions under this Act.

(3) Anything said or any information suppUed or any document, paper or thing produced by any person in the course of any inquiry by or proceedmgs before the Envkonmental Ombudsman under this Act is privUeged m the same manner as if the mquky or 12

proceedmgs were proceedings m a court.

(4) For the purposes of the Defamation Act, reports and statements of the Envkonmental Ombudsman under this Act shaU be deemed to be privUeged and a fak and accurate report thereof m a newspaper or a broadcast shaU be deemed to be privUeged. 19 For the purposes of this Act, the Envkonmental Ombudsman may at any time enter on any premises occupied by any department or agency and inspect the premises and carry out in those premises any investigation that is within his jurisdiction. 20(1) With the prior approval of the Select Standmg Committee, the Ombudsman may be wrkmg under his hand, delegate to any person holding any office under him any of his powers under this Act, except his power of delegation and the power to make any report under this Act.

(2) A delegation may be made to a specified person or to the holder for the time being a specified office or to the holders of offices of a specified class.

(3) Every delegation is revocable at wiU and no delegation prevents the exercise of any power by the Ombudsman.

(4) A delegation may be made subject to any restrictions and conditions the Ombudsman thinks fit, and may be made either generaUy or in relation to any particular case or class of cases.

(5) UntU a delegation is revoked, it continues in force according to its tenor and, in the event of the Ombudsman by whom it was made ceasing to hold office, continues to have effect as if made by his successor.

(6) Any person purporting to exercise any power of the Envkonmental Ombudsman by vktue of such a delegation shaU, when requked to do so, produce evidence of his authority to exercise the power. 21 Except for purposes connected with the administration of this Act or with the carrying out of the provisions of this Act the Envkonmental Ombudsman emd every person holdkig any office or appointment under the Envkonmental Ombudsman shaU maintain secrecy in respect of all matters that come to thek knowledge in the exercise and performance of thek powers and functions under this Act. 22(1) Wkhout Umkmg the right of the Envkonmental Ombudsman to make any other report or report to the Legislature 13

at any other time, the Envkonmental Ombudsman shaU m each year make a report to the Legislature on the exercise of his functions under this Act.

(2) The Envkonmental Ombudsman may, from tkne to time, in the pubUc interest or the interests of any person or department or agency pubUsh reports relating (

a) generaUy to the exercise of his functions under this Act; or (

b) to any particular case investigated by him, whether or not the matters to be dealt with in any such report have been the subject of a report to the Legislature. 23 Any person who, (

a) without lawful justification or excuse, wUfuUy obstructs, hinders or resists the Envkonmental Ombudsman or any other person in the exercise of his powers under this Act; (

b) without lawful justification or excuse, refuses or wilfully fails to comply with any lawful requkement of the Envkonmental Ombudsman or any other person under this Act; or (

c) wilfuUy makes a false statement to or misleads or attempts to mislead the Envkonmental Ombudsman or any other person in the exercise of his powers under this Act is guilty of an offence and is Uable to a fine of not more than $1000 and in default of payment to imprisonment for a term not exceeding 3 months. 24(1) Wherever the provisions of this Act and the provisions of any other Act are in confUct, this Act shaU take precedence.

(2) Notwithstandmg the provisions of subsection (1) the provisions of this Act shaU not be construed so as to deprive any person of; (

a) any remedy or right of appeal or objection provided for any person; or (

b) any procedure provided for the kiquiry mto or investigation of any matter. 14

provided under the provisions of any other Act or any rule of law and nothing in this Act limits or affects any such remedy or right of appezd or objection or procedure. 15 Title: 1990 (22nd 2nd) Bill 238, Environmental Ombudsman Act