Bill 202 — Third Session, 22Nd Legislature, 40 Elizabeth Ii the Legislative Assembly of Alberta Bill 202 Environmental Bill of Rights Act (Legislature 22, Session 3)

L22 S3 2608

Alberta — Bills

1991 BILL 202 Third Session, 22nd Legislature, 40 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 202 ENVIRONMENTAL BILL OF RIGHTS ACT MR. MCINNIS First Reading Second Reading Committee of the Whole Third Reading Royal Assent Title: 1991 (22nd, 3rd) Bill 202, Environmental Bill of Rights Act

Bill 202 Mr. McInnis BILL 202 1991 ENVIRONMENTAL BILL OF RIGHTS ACT (Assented to , 1991)

Preamble

WHEREAS a healthy and sustainable environment is the basis of the health and well-being of the people of Alberta; AND

WHEREAS the environment of Alberta is under stress from contamination and degradation; AND

WHEREAS the people of Alberta face substantial obstacles to their ability to participate in environmental decision-making and to protect their common interest in a healthy and sustainable environment; AND

WHEREAS it is desirable to remove these obstacles and ensure the important role of the people of Alberta and their government in securing a healthy environment for present and future generations; AND

WHEREAS it is desirable to conserve and maintain the resources of the Province for the benefit of present and future generations; THEREFORE, HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows: 1

Definitions

PART 1

INTERPRETATION AND PURPOSE 1 In this Act, "Council" means the Environment Council of Alberta established under the Environmental Council Act. "contaminant" means any solid, liquid, gas, odour, heat, sound, vibration, radiation, or combination of any of them resulting directly or indirectly from the activities of people which may, (

a) impair the quality of the environment of the public trust therein for any use that can be made of it, (

b) cause injury or damage to property or to plant or animal life, (

c) cause harm or material discomfort to any person, (

d) adversely affect the health or impair the safety of any person, (

e) render any property or plant or animal life unfit for use by people, (

f) cause loss of enjoyment of normal use of property, or (

g) interfere with the normal conduct of business, and "contaminate" and "contamination" have corresponding meanings; "Court" means the Court of Queen’s Bench of Alberta; "degradation" means any destruction or significant decrease in the quality of the environment or the public trust therein other than a change resulting from contamination and "degrade" has a corresponding meaning; "environment" means, (

a) air, land or water, (

b) plant and animal life, including people, (

c) the social, economic and cultural conditions that influence the life of people or a community, 2

(

d) any building, structure, machine or other device or thing made by people, (

e) any solid, liquid, gas, odour, heat, sound, vibration or radiation resulting directly or indirectly from the activities of people, or (

f) any part or combination of the foregoing and the inter relationships between any two or more of them, in or of Alberta; "Minister" means the Minister of the Environment; "public trust" means the collective interest of residents of the Province of Alberta in the quality of the environment and the protection thereof and the heritage therein for future generations; "regulation" means a regulation made under

an Act listed in the

Schedule to this Act. Purpose 2 The purpose of this Act is to ensure the health and sustainability of the environment of Alberta and, in particular, (

a) to facilitate the right of the people of Alberta to participate and be heard in decisions affecting the environment and their common interest in a healthy and sustainable environment; (

b) to recognize the right of the people of Alberta to an environment that is adequate for their health and well-being and sustainable into the future; (

c) to recognize the obligations of the Province of Alberta to conserve and maintain the resources of the Province for present and future generations; and (

d) to give a right of standing to any person to seek legal remedies in protecting and conserving the environment. Rights of Citizens 3(1) The people of Alberta have a right to a healthy and sustainable environment, including clean air and water, to the conservation of the natural, scenic, historic and aesthetic values of the environment, and to the protection of ecosystems and biological diversity.

(2) It is hereby declared that it is in the public interest to provide every person with an adequate remedy to protect and conserve the environment and the public trust therein from contamination and 3

degradation. Crown duty 4 The Province of Alberta, as trustee of Alberta’s public lands, waters and natural resources, shall conserve and maintain them for the benefit of present and future generations.

PART 2 INVESTIGATIONS Request for Investigation5(1) A person who considers that the environment is being contaminated or degraded may in writing, specifying the nature of the contamination or degradation, request that the Minister investigate the alleged contamination or degradation.

(2) Where the Minister receives a written request under subsection (1) and is satisfied that the request is made in good faith and is not frivolous, the Minister shall make, or cause to be made, any investigation that he or she considers necessary of the alleged contamination or degradation, its source, its effect on the environment and of any advisable remedial action.

(3) The Minister shall provide a copy of the report of the investigation to the person who requested the investigation within ninety days of the date of the request.

PART 3 RIGHT OF ACTION Standards for Initiating an Action 6(1) If an activity has contaminated or degraded, or is likely to contaminate or degrade, the environment, any person may commence an action in the Court against any person who is responsible for the activity. (2) Subsection (1) applies without any requirement that the person commencing the action allege or establish that there has been, is or will be an mfringement of an approval, permit, licence, standard, regulation, rule or order established by or under

an Act listed in the Schedule.

(3) In an action commenced under this section, if the activity complained of is not governed by a standard established under

an Act listed in the Schedule, the Court may hear evidence as to the standard, if any, that should apply to the defendant, having regard to the purposes of this Act, and the Court may order the defendant to comply with such standard as it may determine.

(4) If an activity has contaminated or degraded, or is likely to 4

contaminate or degrade, the environment, any person may apply for judicial review of the exercise or non-exercise of any power or the fulfilment or non-fulfilment of any duty conferred or imposed by any Act on the Minister of the Environment or any other Minister responsible for regulatory, fiscal or proprietary control of the activity. Citizen Suit 7(1) Any person may commence an action in the Court against any person who appears to be in violation of any Act listed in the

Schedule or of any approval, permit, licence, standard, regulation, rule or order established under

an Act listed in the Schedule.

(2) No action under subsection (1) shall be commenced if the Crown is diligently pursuing enforcement action against the potential defendant.

(3) Damages awarded in an action commenced under this Part shall be paid to the Crown. Standing 8 Any person may apply for judicial review under

section 5(4) or may bring an action to enforce the public’s responsibility to protect the environment, including an action in nuisance or an action under

section 5. Security for Costs 9 In the trial of an action commenced under this Act, the Court shall not order the posting of security for costs in an amount in excess of $1000. Onus; defences 10(1) If the Activity of the defendant that is the subject-matter of an action is not governed by a standard established under

an Act listed in the

Schedule or under

section 5(3) and if the plaintiff has established that the activity of the defendant has contaminated or degraded, or is likely to contaminate or degrade, the quality of the environment, the onus shall be on the defendant to establish that there is no feasible and prudent alternative to the activity and that such activity is in the best interests of the public having regard to the purposes of this Act.

(2) It shall be a defence to an action commenced under this Act that the activity of the defendant is authorized by a standard established by or under

an Act listed in the

Schedule unless the plaintiff can establish, on a balance of probabilities, that the activity has caused, or is likely to cause, severe or irreparable contamination or degradation to the environment.

(3) It shall not be a defence to an action commenced under this Act that, (

a) the defendant is not the sole cause of the alleged or 5

potential contamination or degradation; or (

b) it cannot be established that the contaminant which the defendant discharged or deposited or permitted to be discharged or deposited was the cause, in fact, of the contamination or degradation of the environment or the public trust therein, if the effect on the environment is of a nature consistent with the contaminant or source of degradation being a cause.

Injunction; Orders11 In an action commenced under this Act, if it has been established that the activity of the defendant has contaminated or degraded, or is likely to contaminate or degrade, the environment, the Court may grant either an interim or permanent injunction, order the defendant to remedy any damage caused by the defendant’s activity, award damages, impose conditions on the defendant or make such other order as the Court may consider is necessary.

Reference to Council 12(1) The Court may, on the motion of any party or on its own motion, refer any question, except the final determination of the issue, to the Council and the Court may also grant an interim injunction or such other temporary relief as the Court considers necessary for the protection of the environment or the public trust therein pending final determination of the issue.

(2) When the Council has completed its review and consideration of the question referred to it under subsection (1), the Council shall make recommendations concerning the matter in question to the Court, and the Court shall review the recommendations and make such order as it considers appropriate under

section 10. Experts 13(1) In any action under this Act, the Court may appoint an expert, who shall be a disinterested person and qualified as an expert in the relevant field, to give technical and scientific testimony under oath.

(2) The Court may order that the costs of the expert be paid in such manner and by such persons as the Court considers appropriate. 6

PART 4 CLASS ACTIONS Class Actions; Damages 14(1) In an action under this Act, the Court may by order permit one or more persons to act as representatives of a class of persons if, in the opinion of the Court, (

a) a question arises in the proceeding that is common to each member of the class; (

b) the material facts giving rise to the claim for relief of the representatives are similar or related to the material facts giving rise to a claim for relief of the members of the class; and (

c) the representatives are acting in good faith and in the interests of the class.

(2) For the purposes of clause (1)(b), material facts relating to different transactions or events or contracts shall not be taken to be dissimilar or unrelated for that reason alone.

(3) The Court may provide in the judgment of a class action for subsequent determination of the amount and distribution of damages assessed against the defendant.

(4) If damages payable to members of the class remain uncollected for more than 120 days after payment by the defendant into the Court, the amount of the uncollected damages shall be applied in such manner as the Court may order.

PART 5 INSTRUMENTS, HEARINGS

Definitions 15(1) In this Part, (a) "appropriate board" means any board, tribunal or commission established by

an Act listed in the

Schedule empowered to hold hearings with respect to a matter relating to such Act, and where no such board exists, the Council; (b) "instrument" means any licence, permit, approval, certificate of approval, program approval, control order or other order made under

an Act listed in the

Schedule that would permit a person to contaminate or degrade the environment; (c) "proper authority" means any authority under

an Act 7

listed in the

Schedule empowered to issue an instrument. Instruments; Effect and Publication 16(1) Despite any other Act, no instrument is effective unless the requirements of this

section have been met.

(2) If a new instrument or a revision to an existing instrument is proposed, the proper authority shall give notice of the proposal by publishing it in The Alberta Gazette and in two newspapers having general circulation throughout the Province of Alberta. Submissions, Reviews 17(1) Any person may, within 30 days of the giving of notice or within such longer time as may be stated in the notice, (

a) make written submissions to the proper authority with respect to the proposed provisions of the instrument; and (

b) by written notice to the proper authority, request a hearing by the appropriate board with respect to the proposed provisions of the instrument.

(2) The proper authority shall review any written submissions and shall respond in writing to the issues raised therein within a reasonable period of time.

(3) If a request for a hearing has been made, the proper authority shall refer the matter to the appropriate board unless, in its opinion, the request is not made in good faith or is frivolous or is made only for the purpose of delay.

(4) If the proper authority has declined to refer the matter to the appropriate board under subsection (6), it shall give notice of its decision, together with written reasons therefor.

(5) If there is no request for a hearing under subsection (4), the proper authority may issue the proposed instrument not less than 10 days after the time for filing such notice has elapsed.

(6) If there is a request for a hearing under subsection (4) but the proper authority declines to refer the matter to the relevant board, the proper authority may issue the proposed instrument not ess than 20 days after the time for filing such notice has elapsed.

(7) Any person may apply to the Council for a review of an existing instrument m respect of the adequacy of the instrument to protect the environment and the public trust therein from contamination or degradation, having particular regard to technological advances that can be applied in Alberta, and the Council hear the application where a prima facie case has been made that the instrument should be amended or revoked. 8

Notice of Hearing, Decisions 18(1) Where the appropriate board holds a hearing under subsection (6) or (10), the appropriate board shall, (

a) appoint a time and place for the hearing at a city or town convenient to persons likely to be affected by the contamination or degradation; (

b) cause notice to be given of the hearing, (

i) to the proper authority, (ii) to any person who submitted notice to the proper authority under subsection (4), (iii) to any person who submitted notice to the Council under subsection (10), and (iv) to any person that the appropriate board may direct; and (

c) publish notice of the hearing in The Alberta Gazette and in two newspapers having general circulation throughout the Province.

(2) Subject to this Act, any hearing initiated under this

section shall be conducted according to the rules and procedures that apply to the appropriate board.

(3) The appropriate board may make such order as to costs it considers just.

(4) Upon the completion of the hearing, the appropriate board may make such recommendation, order or decision in respect of the matter referred to it under this

section as the appropriate board is empowered to make under its enabling Act.

(5) The proper authority may, in an emergency situation, issue an instrument under

an Act listed in the

Schedule without complying with the other provisions of this section, but such an instrument shall cease to be effective 60 days from the date on which it is issued.

PART 6 REGULATIONS Proposed Regulation; publication 19(1) In this Part, "regulation-making authority" means any authority empowered to make any regulation under

an Act listed in the Schedule. 9

(2) Where a regulation-making authority proposes to make a regulation that may affect the environment, it shall cause the proposed regulation to be published in The Alberta Gazette at least sixty days before it proposes to file the regulation with the Registrar of Regulations and shall request briefs or submissions in relation to the proposed regulation.

(3) The regulation-making authority shall review and consider the submissions received within the 60-day period and shall respond in writing to the issues raised therein within a reasonable period of time.

(4) A regulation filed in contravention of subsection (2) does not come into effect. Review of Regulations20(1) In 1990 and every 5th year thereafter, the Council shall review all regulations that relate to the quality of the environment having regard to their adequacy to protect the environment and the public trust therein from contamination and degradation, having particular regard to technological advances that can be applied in the Province.

(2) The Council shall give public notice of the review and, during the review, may receive public submissions and evidence to the extent and in the manner that it considers appropriate.

(3) Upon completion of the review, the Council shall make a report thereon to the Minister, including any recommended changes to the regulations, and the Minister, after receiving the report, shall then lay the report before the Assembly if it is in session or, if not, within 5 days of the commencement of the next session.

PART 7 ACCESS TO INFORMATION Right to Information Exceptions 21 In this section, "designated Minister" means any minister designated to administer

an Act listed in the Schedule.

(2) Every person has the right to obtain from any designated Minister any available information concerning the quantity, quality or concentration of contaminants emitted, issued, discharged or deposited by any source of contamination or degradation.

(3) The designated Minister shall permit any person who applies therefor to examine any licence, permit, approval, certificate of approval, provisional certificate of approval, control order or other or er, notice of intention to issue a control order, program approval, provisional certificate of approval, notice of violation of 10

an Act listed in the Schedule, and any information in support of any such document, and, on payment of a fee not to exceed 10 cents per page, the person shall be provided with a copy thereof.

(4) The designated Minister shall permit any person who applies therefor to examine any report on any test, observation, inspection or analysis carried out by or under the Minister’s authority relating to any operation subject to

an Act listed in the

Schedule under the Minister’s jurisdiction, and, on payment of a fee not to exceed 10 cents per page, the person shall be provided with a copy thereof.

(5) Notwithstanding subsections (3) and (4), the designated Minister may refuse an application made under subsections (3) and (4) where, in his or her opinion, the information sought to be disclosed contains, (

a) information the disclosure of which would be injurious to law enforcement or the conduct of lawful investigations, including investigative techniques or plans for specific lawful investigations; (

b) information containing personal information respecting an identifiable individual including, without restricting the generality of the foregoing, (

i) vital statistics, (ii) background personal information, (iii) medical, criminal, educational or employment records or history, (iv) the personal opinions or view of the individual, unless those opinions or views are given in the course of employment in the public service of the Government of Alberta; (

c) information of a financial, commercial, scientific or technical sort, (

i) the disclosure of which could reasonably be expected to prejudice significantly the competitive position, or interfere significantly with contractual or other negotiations, of a person, group of persons, organization or government institution, or (ii) the disclosure of which could reasonably be expected to result in undue financial loss or gain by a person, group of persons, organization or government institution, 11

and which, without restricting the generality of the foregoing, includes confidential technology, trade secrets, marketing information, customer lists, advertising budgets and funding sources; or (

d) records of proposals and recommendations to and deliberations and proceedings of the Executive Council or any committee thereof.

(6) Where the designated Minister, under subsection (5), refuses an application for disclosure of information, he or she shall, within twenty days, so inform the applicant, together with written reasons thereof, and the Minister shall inform the applicant of the applicant’s right of appeal to the Council. Right of Appeal22(1) Any applicant may, within 15 days of receipt of a notice under subsection (6), by written notice served upon the designated Minister and the Council, require a hearing before the Council.

(2) In a hearing under subsection (7), the Council shall take every precaution, including, when appropriate, receiving representations without notice and conducting hearings in private, to avoid disclosure by the Council or any other person of any information the disclosure of which may be refused under this section.

(3) In a hearing under subsection (7), the onus of establishing that access to the information may be refused shall be on the designated Minister concerned.

(4) At the conclusion of the hearing, the Council may make such order as it considers appropriate, having regard to the provisions of this section, and without restricting the generality of the foregoing, may, (

a) order the disclosure of all or part of the information sought to be disclosed; or (

b) where the Council has determined that the information should not be disclosed, order that a non-confidential

summary of all or any part of the information be prepared.

(5) An appeal lies to the court of Queen’s Bench from a decision of the Council on a point of law or jurisdiction. 12

PART 8 PUBLIC INTEREST FUNDING Public Interest Funding of Proceedings 23(1) In this section, "Fund" means the Environmental Hearing Assistance Fund.

(2) The Lieutenant Governor in Council may establish a fund to be known as the Environmental Hearing Assistance Fund.

(3) Where a Fund has been established under subsection (2), the moneys required for the purposes of the Fund shall be paid out of the Consolidated Revenue Fund in the fiscal year during which it is established and thereafter shall be paid out of the moneys appropriated therefor by the Legislature.

(4) Subject to subsection (5), whenever a proceeding before any board, tribunal, commission or court, or any appeal or review thereof, is authorized under the provisions of this Act or

an Act listed in the Schedule, any party or intervenor who engages in proceedings for the purpose of protecting and conserving the environment may, at any time, make an application for financial assistance to the Council.

(5) A person may apply under subsection (4) only where that person, (

a) represents an interest representative of significant bodies of opinions that would otherwise not be represented at the proceedings; and (

b) does not have sufficient financial resources to enable him to adequately represent that interest.

(6) Where a Fund is available and the Council is satisfied financial assistance is appropriate, the Council may order that a sum be paid to the applicant therefor from the Fund in such manner, at such times and in such amount as the Council considers appropriate.

(7) No person is precluded from applying under subsection (4) by reason only that he has previously received financial assistance under subsection (6).

(8) Where it appears to the Council that several parties or intervenors having identical or substantially similar interests have applied for financial assistance from the Council, the Council may consolidate the applications and make such order concerning payment as it considers appropriate. 13

(9) In considering the sum to be awarded to any applicant, the Council shall have regard to all the attendant costs associated with participating in the proceedings, including, (

a) legal fees; (

b) disbursements; (

c) conduct money; (

d) witness fees; (

e) fees for relevant reports and studies; and (

f) any other cost that is relevant and appropriate to participation in the proceedings.

(10) This

section does not apply to hearings or other proceedings under the Energy Resources Conservation Act or the Natural Resources Conservation Board Act.

PART 9 EMPLOYEE RIGHTS No discipline, dismissal, etc. by employer 24(1) No employer shall, (

a) dismiss or threaten to dismiss an employee; (

b) discipline or suspend an employee; (

c) impose any penalty upon an employee; or (

d) intimidate or coerce an employee, because the employee has reported or proposes to report to the appropriate authority

an act that contaminates or degrades the environment.

(2) Where an employer is convicted of an offence under subsection (1), the provincial judge making the conviction shall, in addition to the penalty, order what action the employer shall take or what the employer shall refrain from doing and such order may include the reinstatement in employment of the employee with compensation for loss of wages and other benefits to be assessed against the employer.

(3) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than 14

$10,000 or to imprisonment for a term of not more than six months, or to both.

PART 10 MISCELLANEOUS Other remedies preserved 25 Nothing herein contained shall be construed so as to repeal, remove or reduce any existing remedy available at law to any person. Conflict 26 Where a conflict appears between any other Act, including the Environmental Impact Assessment Act, the provision of this Act shall prevail. Crown 27 This Act binds the Crown. Proclamation28 This Act comes into force on the date to be fixed by Proclamation. 15

SCHEDULE Agricultural Chemicals Act Beverage Container Act Clean Air Act Clean Water Act Department of the Environment Act Environment Council Act Energy Resources Conservation Act Ground Water Development Act Hazardous Chemicals Act Land Surface Conservation and Reclamation Act Litter Act Natural Resources Conservation Board Act Planning Act Transportation of Dangerous Goods Control Act Title: 1991 (22nd, 3rd) Bill 202, Environmental Bill of Rights Act

Document details

Collection	Alberta — Bills
Citation	L22 S3 2608
Type	bill
Volume / chapter	L22 S3 2608
Language	en
Format	json
Source	PROVINCIAL
Identifier	dccb396438119f6345957f1acc37daaf40f4abc0

Source file is stored in the law ingest library (json).