Bill 213 — Fourth Session, 18Th Legislature, 27 Elizabeth Ii the Legislative Assembly of Alberta Bill 213 the En'Vironmen'Tal Bul O'F Rights (Legislature 18, Session 4)

L18 S4 4398

Alberta — Bills

1978 BILL 213 Fourth Session, 18th Legislature, 27 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 213 THE EN'VIRONMEN'TAL BUL O'F RIGHTS MR. CLARK Fi~t Readmg _______________________________________ _ Second Readmg ______________________________________ _ Committee of the Whole _______________________________ _ Third Rea:dmg _______________________________________ _ Royal Assent ________________________________________ _ Printed by the Queen's Printer for the Province of Alberta, EDMONTON

Bill 213 Mr. Clark BILL 213 THE EN:VIRONMEN:TAL BUL OIF 'RIGHTS 1978 (Assented to ,1978)

WHEREAS it is recognized in Alberta as a fundamental principle and as a matter 'Of public policy that the residents of the Province 'have the right to enjoy a clean environment, the loss Dr impairment of which is a loss or impairment of an interest that 'should have legal recognition; and \tVHEREAS it is fitting that this principle be affirmed by the Legislature of Alberta in an enactment whereiby those rights may be established 'and means for their pruteotion be given t'O all persons; THEREFORE HER MAJESTY, by and with the advice and consent -of the Legislative Assembly of Alberta, enaots as follows: 1. · In this Act (a) "Board" means The Environment Adjudication Board established pursuant to

section 7; (b) "environment" means the air, water, soil and any life therein or any other natural reSOUfce '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 fight of the Province or any individual, firm, corporation, 'Society, association, 'county or municipality 'Or any agency of any o'f them, resident in the Province; (f) "pollutant" means any substance whether solid, liquid or gaseous or any radiation or vibration whiCh, in the situa tion in question, is 'capable of destroyiIl!g or significantly decreasing the quality of the environment; (g) "public trust" means the colleotive interest of residents of the Province in the quality of the environment and 1Jhe protection thereof and the heritage therein for future generations;

Explanatory Notes I.

Definitions.

(h) "regu1ation" means a regulation issued pursuant to this Act or to any Act listed in

Schedule "A" heret'O. 2. ( 1) Notwithstanding any other Act, and subject to sub section (3), where any Act Hsted in

Schedule A hereto gives the Crown or the Attorney General the power to prosecute 'Offences, every pers'On shall have standing to prosecute an offence against any other person by laying an information for the pr'Osecuti'On of the offence under that Act and in the manner provided in the Act as if the grant of standing were c'Ontained in the Act.

(2) Before a person may commence an action under subsec tion (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 'oommence prosecution of the alleged offence within 60 days of mail ing of the notice, 'Or such lesser time as the judge may deem appropriate considering the seriousness of the :alleged offence and the 'consequences of its 'continuance; (

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

c) he has evidence which tends t'O show that an offence has been committed by the proposed defendant; and the judge, if satisfied under clauses (a), (

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

(3) No information may be laid t'O !commence an action pur suant to subsection (1) unless endorsed with a judge's fiat pur suant to subsection (2). 3. ( 1 ) This seotion applies whether or not it is alleged that there has been an infringement of a standard established by Dr pursuant to any Act listed in

Schedule A.

(2) Where a p'Ollutant is released into or is released and sub sequently escapes into the environment of any property owned or occupied by the Crown, a county or a municipality, whether the release 'Or escape is deliberate, negligent or accidental, any person may 'commence an action by statement of claim in the Supreme Court against any person who (

a) released the p'Ollutant or allowed it to esoape, or (

b) had a duty to prevent the release or es'oape of the pollu- tant and failed therein if that envir'Onment or the public trust therein is thereby destroyed ?r its 9uality significantly decreased, 'Or ]if the release or escape, ifoontmued or repeated, is likely to destroy or significantly de crease the quality of the environment 'Or the public trust therein.

(3) Where a poUutant is released into, or is released and sub s~que~tly escapes, into the environment of any property owned ~r O:0cupled by a person 'Other than the Crown, a county or a mUlll cIp~hty, whether the release or escape is deliberate, negligent or aCCIdental, ~he~ that person may commence an action by state ment of dalm III the Supreme Court against any person who 2

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

(

a) released the pollutant Dr allowed it to es'cape, or (

b) had a duty to preevnt the release or escape of the pollu- tant and failed therein if that environment or the public trust therein is ther'eby destroyed or its quality significantly decre'3!sed, or ,if the release or escape, if continued or repeated, is likely to destroy or signifioantly de crease the quality of the environment or the public trust therein. ( 4) Any person who would have had the right to commence an action which has been 'commenced under subsection (2) or (3) may apply tD the Court to be j'Oined as la '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 defen dant 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 defendant until there is a standard established by 'Or pursuant toO legislation relat ing 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 prose cution or action Icommenced under this Act any defendant or third party may apply to the Court for an 'Order requiring the person bringing the aotion 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 M~ , , (

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 posting of security for oosts. ( 4) If the Court is satisfied that ,the person bringing the action (

a) has a prima facie case to bring before the Court,and (

b) is bringing the action for the protection of the environ ment or the public trust therein the court shall not order the posting of security for costs in excess of (c) $500 in the case of a prosecution commenced under

section 2, or (d) $5000 in the 'cas'e of an action oommenced under

section 3.

(5) Upon the conclusion of the hearing the Court, if it sees fit, may order the action to be stayed. 3

4. Security for costs. 3

5. In an action where the defendant's alleged conduct is not covered by a standard, established by or pursuant to any Act listed in

Schedule A, when the plaintiff has shown that the conduct of the defendant has, or if continued, is like'ly to destroy or signifi cantly decrease the quality of the environment or the public trust therein, the onus shall then be on the defendant to show in defence either': (a) ,that his action has been sanctioned by legal authority currently in force, or (

b) that there is no feasible and prudent alternative to the defendant's ,conduct and that 'such conduct is in the best interests of the Province having regard to the protection of the environment and the public trust therein, and the maintenance of public health, safety and welfare. 6.

(1) In an ,action commenced under

section 3, where it has been shown that the defendant's conduct has destroyed or signifi oantly decreased the quality of, or if continued or repeated is likely to destroy or significantly decrease the quaHty of the environment or the public trust therein, the Court may gliant either an interim or permanent injunction, order the defendant to femedy damage caused by his 'conduct, award damages, impose conditions on the defendant or make such other order as in the Court's view is necessary to protect the interests of the plaintiff in the environment or the public trust therein.

(2) No interim injunction 'shall be granted unless the plaintiff posts security for the damages of the defendant in such amount as the Court may determine.

(3) An order made pursuant to this

section need not be in the form of, and is not subject to the 'conditions applying to ,an order in the nature of mandamus, prohibition or ,certiorari. 7.

(1) There is hereby established The Environment Adjudi cation Board consisting of 11 members appointed by the Lieuten ant Governor in Council who shall also appoint one of the mem bers to be Chairman.

(2) The Board may make bylaws governing its internal procedures. (3) 'J1he Board may operate in one or more divisions. ( 4) Three members of the Board or a division constitute a quorum. (5) 'J1he members of the Board may be paid such salary and receive r,eimbursement of expenses as is fixed by the Lieutenant Governor in Council out of money appropriated by the Legisla ture or provided by 'Special warliant for that purpose. ( 6) The Board may receive evidence on oath. 8. ( 1) 11he Court may remit any proceedings or questions to ~he Board as the Court may deem appropriate and the proceed mgs therein shall be conducted in accordance with and subject to the provisions of The Administrative Procedures Act and in so 4

5. Burden of proof; defences. 6. Remedies. 7. Environment Adjudication Board. 8. Remission of proceedings. 4

remitting the Court may also grant interim injunctions or such other temporary relief that the Court deems necessary for the pro teotion of the environment or the public trust therein from de struction, or significant decrease in quality and in S'O remitting, the Court shall retain jurisdiction of the action. (2 ) Upon 'completion 'Of any m1atter remitted to the Board, the Court shaH review the recommendations of the Board ,and make such order as it sees fi.t pursuant to

section 6.

(3) Whenever administrative proceedings before any body and any appeal thereof are available by provision of any Act listed in

Schedule A hereto, the body or the Court may permit any per s'On to join as eo~ptaintiff, or be joined as third party to such proceeding 'Or appeal. 9.

(1) In any action hereunder, the Court may appoint an inspector, who shall be a disinterested person and qualified as an expert in the relevant field, to take technioal and scientific testi mony 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 e~amine the inspector or any person who has given testimony to him. (2) vhe costs of such inspector shaH be borne in such manner as the Court may direct. 10.

(1) The Minister may by regulation permit a pers'On to ex:ceed a legally established standard 'felating to the release of a pollutant into the environment fDr 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 r,enewed once 'Only, for a further period not to exceed one year. 1.1..

(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 regu lation, 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) vhe hearing. shall be held in public at a city or town con vement to persons lIkely to be affected by the regulation and sh'all be n.o l~ss than 20 a~d no more than 45 days from the date 'Of publIcatt'On of the notice pursuant to subsection (1). (~ ) Any 'perso~ may make a repr'esentation at the hearing if he: ~ves n~tI~e 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 ;d~ys of th~ publi~ation of the notioe, no per so~ has gIve~ t?e Minister notIce 'Of intent to present a represen tatIon, the M1ll1ster may oancel the hearing and issue the regula tion forthwith. 5

9. Inspector for technical evidence. 10. Control orders. II. Regulations issued on notice and after public hearing. 5

(5) Any person who gives notice of intent to make a repre sentation and who, without reasonable exouse, 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 sum mary conviction to a fine of not more than $250. ( 6) The Minister may in emergent situations issue a regulation pursuant to any Act listed in

Schedule A before, but conditional upon the subsequent fulfillment 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 lany person who applies therefor to see any control 'Order, application made for a control order issued pursuant to section' It{) or any undertaking· 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 oopy thereof. (2) l1he Minister shall permit any person who applies therefor to see any report on any test, observation or analysis Icarried 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 aotion brought against a person who has been gran ted a control order, where it is shown that the emissi'On exceeded the limits in the legally established standards but did not exceed the limits established pursuant to the control ordeT, the control order shall be a defence to the action wiilll regard only to the remedy of injunction and general or punitive damages and shall not constitute a defence with regard to special damages. 14.

(1) In 1979 and every second year thereafter, the Board shall review all regulations which relate to the quality of the enivr:onment ip.. regard to (

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

b) their adequacy in the light of technological advances which oan be applied in the Province; (

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

(2) The Board shall give public notice of the review and dur ing the review may receive such public representations and such evidence as they deem appropriate. 15. Nothing herein contained shall be construed so as to re peal, remove or reduce any existing remedy available at law to any person. 116. l1his Act binds the Crown. 6

12. Copies of control orders and related documents available to public. 13. Control order as defence. 14. Board's biennial review of regulations. 1 S. Existing remedies saved. 16. Crown is bound. 6

17. Sections 4.7 and 4.8 of The Clean Air Act are repealed. 18. Sections 4.8 and 4.9 of The Clean Water Act are repealed. pealed. 19. This Act comes into force on a date to be fixed by Pro clamation. 7

17. Repeals sections 4.7 and 4.8 of

chapter 16, 1971 Statutes. 18. Repeals sections 4.8 and 4.9 of

chapter 17, 1971 Statutes. 7

SCHEDULE ,A Agricultural Ohemicals Act Beve:mge Conl1ainer Act Clean Air Act Clean Wiater Act Department of the Environment Act Drainage Districts Act Environment Council Act Alberta Environmental Research Trust Act Ground W'ater Control Act Land Surface Conservation and Reclamation Act Litter Act Surface Redamation Act Water Resources Aot 8 Title: 1978 (18th, 4th) Bill 213, The Environmental Bill of Rights

Document details

Collection	Alberta — Bills
Citation	L18 S4 4398
Type	bill
Volume / chapter	L18 S4 4398
Language	en
Format	json
Source	PROVINCIAL
Identifier	e90c42f40d555e977c2275669d676c5f5d655b15

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