Bill 255 — Third Session, 18Th Legislature, 26 Elizabeth Ii the Legislative Assembly of Alberta Bill 255 the Envi:Ronment ~L Bill of 'Rights (Legislature 18, Session 3)

L18 S3 5859

Alberta — Bills

1977 Bill 255 Third Session, 18th Legislature, 26 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 255 THE ENVI:RONMENT ~L BILL OF 'RIGHTS MR. CLARK First Reading . Second Reading Third Reading Prlntld br til. Queen's Printer for tile Province of Alberta, EDMONTON

Bill 255 Mr. Clark BILL 255 1977 THE ENVIRONMENTAL BILL OF RIGHTS (Assented to , 1977)

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter of public policy that the resi dents of the Province have the right to enjoy a clean envi ronment the loss or impairment of which is a loss or impair ,ment of an interest that should have legal recognition; and

WHEREAS it is fitting that this principle be affirmed by the Legislature of Alberta in an enactment whereby those rights may be established and means for their protec tion be given to all persons: THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows: 1. In this Act (a) "Board" means The Environment Adjudication Board established pursuant to

section 8; (b) "environment" means the air, water, soil and any life therein or any other natural resource or any combination thereof; (c) "Minister" means the Minister of the Environment; (d) "municipality" has the meaning ascribed to it in The Municipal Government Act; (e) "person" means the Crown in the right of the Pro vince or any individual, firm, corporation, society, association, county or municipality or any agency of any of them, resident in the Province; (f) "pollutant" means any substance whether solid, liquid or gaseous or any radiation or vibration which in the situation in question is capable of de stroying or significantly decreasing the quality of the environment; (g) "public trust" means the collective interest of resi dents of the Province in the quality of the environ ment and the protection thereof and the heritage ther~in for future generations;

Explanatory Notes I.

Definitions.

(h) "regulation" means a regulation issued pursuant to this Act or to any Act listed in

Schedule "A" here to. 2.

(1) Notwithstanding any other Act, and subject to subsection (3), where any Act listed in

Schedule A hereto gives the Crown or the Attorney General the power to pro secute offences, every person shall have standing to prose cute an offence against any other person by laying an in formation for the prosecution of the offence under that Act and in the manner provided in the Act as if the grant of standing were contained in the Act.

(2) Before a person may commence an action under sub section (1) he shall appear before a judge and satisfy him that (

a) he has given notice by registered mail of the alleged offence to the Attorney General and the Attorney General has failed to give a written undertaking to commence prosecution of the alleged offence within 60 days of mailing of the notice, or such lesser time as the judge may deem appropriate considering the seriousness of the alleged offence and the conse quences of its continuance; (

b) the information discloses an offence under the Act in question; (

c) he has evidence which tends to show that an offence has been committed by the proposed defendant; and the judge, if satisfied under cIa uses (a), (

b) and (c), shall endorse the information with his fiat.

(3) No information may be laid to commence an action pursuant to subsection (1) unless endorsed with a judge's fiat pursuant to subsection (2). 3.

(1) This

section applies whether or not it is alleged that there has been an infringement of a legally established standard.

(2) Where a pollutant is released or is released and subsequently escapes, whether the release or escape is deliberate, negligent or accidental, into the environm,ent of any property owned or occupied by the Crown, a county or a municipality, any person may commence an action by statement of claim in the Supreme Court against any person who (

a) released the pollutant or allowed it to 'escape, or (

b) had a duty to prevent the release or escape of the pollutant and failed therein if that environment or the public trust therein is thereby destroyed or its quality significantly decreased, or if such release or escape if continued or repeated is likely to destroy 2

2. Grants of standing to prosecute statutory offences. 3. Grants of standing to commence action. 2

or significantly decrease the quality of the environment or the public trust therein.

(3) Where a pollutant is released or is released and sub sequently escapes, whether the release or escape is deliber ate, negligent or accidental, into the environment of any property owned or occupied by a person other than the Crown, a county or a municipality then that person may comm,ence an action by statement of claim in the Supreme Court against any person who (

a) released the pollutant or allowed it to escape, or (

b) had a duty to prevent the release or escape of the pollutant and failed therein if that environment or the public trust therein is thereby destroyed or its quality significantly decreased, or if such release or escape if continued or repeated is likely to destroy or significantly decrease the quality of the environment or the public trust therein.

(4) Any person who would have had the right to com mence an action which has been commenced under subsec tion (2) or (3) may apply to the Court to be joined as a co-plaintiff in any action so commenced.

(5) In an action commenced under this section, if the act complained of is not the subject of any legally established standard the Court may hear evidence as to what standard, if any, should apply to the conduct of that defendant and may order the defendant to comply with such standard.

(6) Any order of compliance with a standard set by the Court pursuant to subsection (5) shall be binding on the de fendant until there is a legally established standard relating to the defendant's conduct in connection with the pollutant in question. 4.

(1) At any time prior to a trial of the issue in any prosecution or action commenced under this Act any de fendant or third party may apply to the Court for an order requiring the person bringing the action to post security for costs.

(2) A hearing pursuant to subsection (1) shall be on notice to all parties and the Court may hear argument from any party as to (

a) the seriousness of the offence or harm alleged; (

b) the consequences to the defendant of the order sought; or (

c) any other matter that the Court deems relevant to the posting of security for costs.

(3) Upon the conclusion of the hearing the Court shall make such order as it deems appropriate regarding the post ing of security for costs. 3

4. Security for costs. 3

(4) If the C'Ourt is satisfied that the pers'On bringing the acti'On (

a) has a prima facie case t'O bring bef'Ore the C'Ourt, and (

b) is bringing the acti'On f'Or the pr'Otecti'On 'Of the en vir'Onment 'Or the public trust therein the c'Ourt shall n'Ot 'Order the posting 'Of security f'Or c'Osts in excess 'Of (c) $5,000 in the case 'Of a pr'Osecution commenced under secti'On 2, 'Or (d) $5,000 in the ease 'Of an acti'On c'Om,menced under secti'On 3.

(5) Upon the conclusi'On 'Of the hearing the C'Ourt, if it sees fit, may 'Order the acti'On t'O be stayed. 5. In an acti'On where the defendant's alleged c'Onduct is n'Ot c'Overed by a legally established standard, when the plaintiff has sh'Own that the c'Onduct 'Of the defendant has, 'Or if c'Ontinued, is likely t'O destr'Oy 'Or significantly decrease the quality 'Of the envir'Onment 'Or the public trust therein, the 'Onus shall then be 'On the defendant t'O sh'Ow in defence either: (

a) that his acti'On has been sancti'Oned by legal auth'Ori ty currently in f'Orce, 'Or (

b) that there is n'O feasible and prudent alternative t'O the defendant's c'Onduct and that such c'Onduct is in the best interests 'Of the Pr'Ovince having regard t'O the pr'Otecti'On 'Of the envir'Onment and the public trust therein, and the maintenance 'Of public health, safety and welfare. 6.

(1) In an acti'On c'Ommenced under secti'On 3, where it has been sh'Own that the defendant's c'Onduct has destr'Oyed 'Or significantly decreased the quality 'Of, 'Or if c'Ontinued 'Or repeated is likely t'O destr'Oy 'Or significantly decrease the quality 'Of theenvir'Onment 'Or the public trust therein, the C'Ourt may grant either an interim 'Or permanent injuncti'On, 'Order the defendant t'O remedy damage caused by his c'On duct, award damages, imp'Ose c'Onditi'Ons 'On the defendant 'Or make such 'Other 'Order as in the C'Ourt's view is necessary t'O pr'Otect the interests 'Of the plaintiff in the envir'Onment 'Or the public trust herein.

(2) N'O interim injuncti'On shall be granted unless the plaintiff p'Osts security f'Or the damages 'Of the defendant in such am'Ount as the C'Ourt may determine.

(3) An 'Order made pursuant t'O this secti'On need n'Ot be in the f'Orm 'Of, and is n'Ot subject t'O the c'Onditi'Ons applying t'O an 'Order in the nature 'Of mandamus, pr'Ohibiti'On 'Or cer ti'Orari. 4

5. Burden of proof; defences. 6. Remedies. 4

(1) There is hereby established The Environment Adjudication Board consisting of 11 members appointed by the Lieutenant Governor in Council who shall also appoint one of the members to be Chairman.

(2) The Board may make bylaws governing its internal proced ures.

(3) The Board may operate in one or more divisions.

(4) Three members of the Board or a division constitute a quorum.

(5) The members of the Board may be paid such salary and receive reimbursement of expenses as is fixed by the Lieutenant Governor in Council out of monies appropriated by the Legislature or provided by special warrant for that purpose.

(6) The Board may receive evidence on O'ath. 8.

(1) The Court may remit any proceedings or questions to' the Board as the Court may deem appropriate and the proceedings therein shall be conducted in accordance with and subject to the provisions of The Administrative Pro cedures Act and in so remitting the Court may also grant interim inj unctions or such other temporary relief that the CO'urt deems necessary for the protection of the environ ment or the public trust therein from destruction, or signi ficant decrease in quality and in so remitting, the Court shall retain jurisdiction of the action.

(2) UpO'n completion of any matter remitted to the Board, the Court shall review the recommendations of the Board and make such order as it sees fit pursuant to

section 6.

(3) Whenever administrative proceedings before any bO'dy and any appeal thereof are available by provision of any Act listed in Schedule" A" hereto, the body or the Court may permit any person to join as co-plaintiff, or be joined as third party to such proceeding or appeal. 9.

(1) In any action hereunder, the Court m,ay appoint an inspector, who shall be a disinterested person and quali fied as an expert in the relevant field, to take technical and scientific testimony under oath and make a record thereof and a report of his findings and his opinion thereon to the Court without prejudice to the right of any party to ex amine the inspector or any person who has given testimony to him.

(2) The costs of such inspector shall be borne in such manner as the Court may direct. 5

7. Environment Adjudication Board. 8. Remission of proceedings. 9. Inspector for technical evidence. 5

(1) The Minister may by regulation permit a person to exceed a legally established standard relating to the re lease of a pollutant into the environment for an initial period not to exceed one year.

(2) A regulation issued under subsection (1) shall be called a control order.

(3) A control order may be renewed once only, for a fur ther period not to exceed one year. 11.

(1) Notwithstanding any other Act no regulation may be issued pursuant to this Act nor any Act listed in

Schedule "A" hereto unless no less than 60 days before the issuance of the regulation, notice of the proposed provisions of such regulation is given by publication in the Alberta Gazette and two newspapers circulating throughout the Province and of the time and place at which a hearing will be held.

(2) The hearing shall be held in public at a city or town convenient to persons likely to be affected by the regulation and shall be no less than 20 and no more than 45 days from the date of publication of the notice pursuant to subsection (1).

(3) Any person may make a representation at the hear ing if he gives notice of intent to do so by written notice received by the Minister within 15 days of the publication of the notice.

(4) If, within 15 days of the publication of the notice, no person has given the Minister notice of intent to present a representation, the Minister may cancel the hearing and issue the regulation forthwith.

(5) Any person who gives notice of intent to make a rep resentation and who fails to appear at the designated place and date, or in doing so makes no argument or presents no evidence is guilty of an offence and liable on

summary con viction to a fine of not more than $2:50.

(6) The Minister may in emergent situations issue a regulation pursuant to any Act listed in

Schedule "A" be fore, but conditional upon the subsequent fulfiHment of the provisions of this section, within 60 days of the issue.

(7) Any number of regulations may be dealt with at one hearing. 12.

(1) The Minister shall permit any person who ap plies therefor to see any control order, application made for a control order issued pursuant to

section 10 or any under taking given in support of any application therefor, and on payment of a fee not to exceed 10 cents per page, provide any person applying with a copy thereof. 6

10. Control orders. 11. Regulations issued on notice and after public hearing. 12. Copies of control orders and related documents available to public. 6

(2) The Minister shall permit any person who ap,plies therefor to see any report on any test, observation or analy sis carried out by or under his authority relating to any pollutant, and shall on payment of a fee not to exceed 10 cents per page, provide any person applying with a copy thereof. 13.

In an action brought against a person who has been granted a control order, where it is shown that the emission exceeded the limits in the legally established standards but did not exceed the limits established pursuant to the control order, the control order shall be a defence to the action with regard .only to the remedy of injunction and general or puni tive damages and shall not constitute a defence with regard to special damages. 14.

(1) In 1978 and every second year thereafter, the Board shall review all regulations which relate to the quality of the environment in regard to (

a) their adequacy to protect the environment and the public trust therein from destruction .or significant decrease in quality; (

b) their adequacy in the light of technological advan ces which can be applied in the Province; (

c) their impact on the economy of the Province; and shall make a report thereon and any recommended changes thereto to the Minister.

(2) The Board shall give public notice of the review and during the review may receive such public representations and such evidence as they deem appropriate. 15. Nothing herein contained shall be construed S'O as to repeal, remove or reduce any existing remedy available at law to any person. 16. This Act binds the Crown. 17. This Act comes into force on a date to be fixed by Proclamation. 7

13. Control order as defence. 14. Board's biennial review of regulations. 15. Existing remedies saved. 16. Crown is bound. 7

SCHEDULE A Agricultural Chemicals Act Beverage Container Act Clean Air Act Clean Water Act Department of the Environment Act Drainage Districts Act Environment Conservation Act Alberta Environmental Research Trust Act Ground Water Control Act Land Surface Conservation and Reclamation Act Litter Act Surface Reclamation Act Water Resources Act 8

8 Title: 1977 (18th, 3rd) Bill 255, The Environmental Bill of Rights

Document details

Collection	Alberta — Bills
Citation	L18 S3 5859
Type	bill
Volume / chapter	L18 S3 5859
Language	en
Format	json
Source	PROVINCIAL
Identifier	95f90337e4ee39ae4144b9f393b455b2c3a29572

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