Bill C-469

2nd Session, 40th Parliament,

57-58 Elizabeth II, 2009

house of commons of canada

BILL C-469

An Act to establish a Canadian Environmental Bill of Rights

Whereas Canadians share a deep concern for our environment and recognize its inherent value;

Whereas Canadians understand that a healthy and ecologically balanced environment is inextricably linked to the health of individuals, families and communities;

Whereas Canadians have an individual and collective responsibility to protect the environment of Canada for the benefit of present and future generations;

Whereas Canadians want to assume full responsibility for their environment, and not to pass their environmental problems on to future generations;

Whereas Canadians understand the close linkages between a healthy and ecologically balanced environment and Canada’s economic, social, cultural and intergenerational security;

Whereas Canadians have an individual and collective right to a healthy and ecologically balanced environment;

Whereas action or inaction that results in significant environmental harm could compromise the life, liberty and security of the person and be contrary to section 7 of the Canadian Charter of Rights and Freedoms;

Whereas the Government of Canada is the trustee of Canada’s environment within its jurisdiction and is therefore responsible for protecting the environment for present and future generations of Canadians;

Whereas the Government of Canada has consistently made commitments to the international community on behalf of all Canadians to protect the environment for the benefit of the world;

Whereas the Government of Canada's ability to protect the environment is enhanced when the public is engaged in environmental protection;

Whereas Canadians seek to enhance and protect their ability to participate directly in environmental decision-making, to access environmental justice and to hold the Government of Canada accountable for the discharge of its environmental protection responsibilities;

And whereas Canadians want improved access to courts and administrative tribunals so that individuals, communities and public interest organizations may take action to protect our environment;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the Canadian Environmental Bill of Rights.

INTERPRETATION

2. The definitions in this section apply in this Act.

“Commissioner” means the Commissioner of the Environment and Sustainable Development appointed under subsection 15.1(1) of the Auditor General Act.

“entity” means a body corporate, trust, partnership or fund, an unincorporated association or organization that is authorized to carry on business in Canada or that has an office or property in Canada.

“environment” means the components of the Earth and includes

(a) air, land and water;

(b) all layers of the atmosphere;

(c) all organic matter and living organisms;

(d) biodiversity within and among species; and

(e) the interacting natural systems that include components referred to in paragraphs (a) to (d).

“federal land” means

(a) land, including any water, that belongs to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the right to dispose of, and the air and all layers of the atmosphere above and the subsurface below that land; and

(b) the following land and areas, namely,

(i) the internal waters of Canada as determined under the Oceans Act, including the seabed and subsoil below and the airspace above those waters, and

(ii) the territorial sea of Canada as determined under the Oceans Act, including the seabed and subsoil below and the air and all layers of the atmosphere above that sea; and

(c) reserves and any other lands that are set apart for the use and benefit of a band under the Indian Act, and all waters on and airspace above those reserves and lands.

“federal source” means

(a) a department of the Government of Canada;

(b) an agency of the Government of Canada or other body established by or under an Act of Parliament that is ultimately accountable through a minister of the Crown in right of Canada to Parliament for the conduct of its affairs; or

(c) a Crown corporation as defined in subsection 83(1) of the Financial Administration Act.

“federal work or undertaking” means any work or undertaking that is within the legislative authority of Parliament, including, but not limited to,

(a) a work or undertaking operated for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship;

(b) a railway, canal, telegraph or other work or undertaking connecting one province with another, or extending beyond the limits of a province;

(c) a line of ships connecting a province with any other province, or extending beyond the limits of a province;

(d) a ferry between any province and any other province or between any province and any country other than Canada;

(e) airports, aircraft and commercial air services;

(f) a broadcast undertaking;

(g) a bank;

(h) a work or undertaking that, although wholly situated within a province, is before or after its completion declared by Parliament to be for the general advantage of Canada or for the advantage of two or more provinces; and

(i) a work or undertaking outside the exclusive legislative authority of the legislatures of the provinces.

“healthy and ecologically balanced environment” means an environment of a quality that protects human and cultural dignity, health and well-being and in which essential ecological processes are preserved for their own sake, as well as for the benefit of present and future generations.

“policy” means a program, plan or objective and includes guidelines or criteria to be used in making decisions about the issuance, amendment or revocation of statutory instruments, but does not include an Act of Parliament or a regulation made under an Act of Parliament or other statutory instrument.

“polluter pays principle” means the principle that a polluter must bear the cost of measures to reduce pollution based on either the extent of the damage done to society or the extent to which an acceptable level (standard) of pollution is exceeded.

“precautionary principle” means the principle that where there are threats of serious or irreversible damage to the environment, lack of full scientific certainty should not be used as a reason for postponing action to protect the environment.

“principle of environmental justice” means the principle that there should be a just and consistent distribution of environmental benefits and burdens among Canadians, without discrimination on the basis of any ground prohibited by the Canadian Charter of Rights and Freedoms.

“principle of intergenerational equity” means the principle that current generations of Canadians hold the environment in trust for future generations and have an obligation to use its resources in a way that leaves that environment in the same, or better, condition for future generations.

“public trust” means the federal government’s responsibility to preserve and protect the collective interest of the people of Canada in the quality of the environment for the benefit of present and future generations.

“significant environmental harm” includes, but is not limited to, harm whose effects on the environment are long lasting, difficult or irreversible, widespread, cumulative, or serious.

“statutory instrument” means any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established

(a) in the execution of a power conferred by or under an Act of Parliament, by or under which that instrument is expressly authorized to be issued, made or established otherwise than by the conferring on any person or body of powers or functions in relation to a matter to which that statutory instrument relates; or

(b) by or under the authority of the Governor in Council, otherwise than in the execution of a power conferred by or under an Act of Parliament.

“sustainable development” means development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

3. This Act must be interpreted consistently with existing and emerging principles of environmental law, including but not limited to

(a) the precautionary principle;

(b) the polluter pays principle;

(c) the principle of sustainable development;

(d) the principle of intergenerational equity; and

(e) the principle of environmental justice.

4. For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

5. Nothing in this Act shall be interpreted so as to repeal, remove or reduce any remedy available to any person under any law in force in Canada.

PURPOSE

6. The purpose of the Canadian Environmental Bill of Rights is to

(a) safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment;

(b) confirm the Government of Canada’s public trust duty to protect the environment under its jurisdiction;

(c) ensure all Canadians have access to

(i) adequate environmental information,

(ii) justice in an environmental context, and

(iii) effective mechanisms for participating in environmental decision-making;

(d) provide adequate legal protection against reprisals for employees who take action for the purpose of protecting the environment; and

(e) enhance the public confidence in the implementation of environmental law.

HER MAJESTY

7. This Act is binding on Her Majesty in right of Canada.

APPLICATION

8. The provisions of this Act apply to all decisions emanating from a federal source or related to federal land or a federal work or undertaking.

PART 1

ENVIRONMENTAL RIGHTS AND OBLIGATIONS

Right to Healthy Environment

9. (1) Every resident of Canada has a right to a healthy and ecologically balanced environment.

(2) The Government of Canada has an obligation, within its jurisdiction, to protect the right of every resident of Canada to a healthy and ecologically balanced environment.

(3) The Government of Canada is the trustee of Canada’s environment within its jurisdiction and has the obligation to preserve it in accordance with the public trust for the benefit of present and future generations.

Access to Information

10. In order to contribute to the protection of the environmental rights of residents of Canada and entities, the Government of Canada shall ensure effective access to environmental information by making such information available to the public in a reasonable, timely and affordable fashion.

Public Participation

11. Every resident of Canada has an interest in environmental protection and the Government of Canada shall not deny any resident standing to participate in environmental decision-making or to appear before the courts in environmental matters solely because they lack a private or special legal interest in the matter.

12. In order to contribute to the protection of the environmental rights of residents of Canada and entities, the Government of Canada shall ensure opportunities for effective, informed and timely public participation in decision-making related to policies or Acts of Parliament or to regulations made under an Act of Parliament or other statutory instruments.

Review of Federal Instruments

13. (1) Any resident of Canada or entity that believes that an existing policy or an Act of Parliament or a regulation made under an Act of Parliament or other statutory instrument should be amended, repealed, or revoked, or that a new policy or Act or a new regulation or other statutory instrument should be made or passed in order to protect the environment, may apply to the Commissioner for a review by the Minister responsible for that policy or that Act or that regulation or other statutory instrument.

(2) The Minister shall acknowledge receipt of a request for review within 20 days.

(3) The Minister shall decide whether to conduct a review within 60 days of acknowledgement of the request and communicate without delay his or her decision to the party requesting the review.

(4) The Minister shall report to the Commissioner on the progress of the review every 90 days.

(5) Upon conclusion of the review, the Minister shall communicate the results of the review in writing to the party making the request and to the Commissioner.

INVESTIGATIONS

14. (1) Any resident of Canada or entity that believes that an Act of Parliament or a regulation made under an Act of Parliament or other statutory instrument related to the envi- ronment has been contravened may apply to the Commissioner for an investigation of the alleged offence by the Minister responsible for that Act or that regulation or other statutory instrument.

(2) The application shall include a solemn affirmation or declaration stating

(a) the name and address of the applicant;

(b) that the applicant is at least 18 years old and a resident of Canada, if the applicant is an individual;

(c) the specific Act or regulation or other statutory instrument alleged to have been contravened;

(d) the nature of the alleged offence and the name of each person alleged to have committed the offence, or acted in a manner contrary to the specified Act or to the specified regulation or other statutory instrument; and

(e) in concise form, the evidence supporting the applicant’s allegations.

15. (1) The Minister referred to in subsection 14(1) must acknowledge receipt of the application within 20 days after receiving it and, subject to subsections (2) and (3), investigate all matters that the Minister considers necessary to determine the facts relating to the alleged offence.

(2) No investigation is required if the Minister determines that the application is frivolous or vexatious.

(3) If the Minister decides not to conduct an investigation, the Minister must, within 60 days after the application for investigation is received, give notice of the decision, with reasons, to the applicant.

(4) The Minister need not give the notice required by subsection (3) if a separate investigation in relation to the alleged offence is under way.

(5) The Minister shall report to the applicant and to the Commissioner on the progress of the investigation every 90 days until resolution of the investigation.

(6) The Minister shall communicate the final results of the investigation in writing to the applicant and to the Commissioner.

PART 2

REMEDIES

Judicial Review

16. (1) Every resident of Canada or entity may seek recourse in the Federal Court to protect the environment by bringing an envi- ronmental protection action against the Government of Canada for

(a) failing to fulfill its duties as trustee of the environment;

(b) failing to enforce an environmental law; or

(c) violating the right to a healthy and ecologically balanced environment.

(2) Actions under subsection (1) may be brought in relation to any action or inaction by the Government of Canada that has in whole or in part resulted, or is likely to result, in significant environmental harm.

(3) Actions under subsection (1) are subject to a civil standard of proof and will be adjudicated on the basis of a balance of probabilities.

(4) It is not a defence to an environmental protection action under subsection (1) that the Government of Canada has the power to authorize an activity that may result in significant environmental harm.

17. (1) A plaintiff bringing an action under subsection 16(1) may make a motion to the Federal Court for an interim order to protect the subject matter of that action, when, in the court’s opinion, significant environmental harm may occur before the action can be heard.

(2) An interim order will not be withheld on the grounds that the plaintiff is unable to provide an undertaking to pay damages.

(3) Any requirement to provide an undertaking to pay damages in support of the plaintiff's application shall not exceed $1,000.

18. (1) In making an order under this Act, the Federal Court may consider

(a) the nature of the environmental harm that has occurred or may occur;

(b) whether the harm resulted from or may result from an attempt to maximize business profits;

(c) the past conduct of the party;

(d) the precautionary principle; and

(e) the principal of intergenerational equity.

(2) In making an order under subsection (1), the Federal Court retains jurisdiction over the matter so as to ensure compliance with its order.

19. (1) Notwithstanding remedial provisions in other Acts, if the Federal Court finds that the plaintiff is entitled to judgment in an action under subsection 16(1), the Federal Court may

(a) grant declaratory relief;

(b) grant an injunction to halt the contravention;

(c) order the parties to negotiate a restoration plan in respect of the significant environmental harm resulting from the contravention and to report to the court on the negotiations within a fixed time;

(d) order the defendant to establish and maintain a monitoring and reporting system in respect of any of its activities that may impair the environment;

(e) order the defendant to restore or rehabil- itate any part of the environment;

(f) order the defendant to take specified preventative measures;

(g) order the defendant to prepare a plan for or present proof of compliance with the order;

(h) order the appropriate Minister to monitor compliance with the terms of any order; and

(i) make any other order that the court considers just.

(2) If the Federal Court finds that the plaintiff is entitled to judgment in an action under subsection 16(1), the court may

(a) suspend or cancel a permit or authorization issued to the defendant or the defendant’s right to obtain or hold a permit or authorization;

(b) order the defendant to provide financial collateral for the performance of a specified action;

(c) order the defendant to pay an amount to be used for the restoration or rehabilitation of the part of the environment harmed by the defendant; and

(d) order the defendant to pay an amount to be used for the enhancement or protection of the environment generally.

20. (1) In making an order under this Act, the Federal Court may issue

(a) a clean-up order;

(b) a restoration order; and

(c) an order to pay a fine that directs moneys to go to environmental protection or monitoring programs.

(2) In making an order under subsection (1), the Federal Court retains jurisdiction over the matter so as to ensure compliance with its order.

21. (1) A plaintiff bringing an action under subsection 16(1) may only be ordered by the Federal Court to pay costs if the action is found to be frivolous, vexatious or harassing.

(2) A plaintiff bringing an action under subsection 16(1) may be entitled to

(a) counsel fees regardless of whether or not they were represented by counsel; and

(b) an advance cost award upon application to the court if, in the opinion of the court, it is in the public interest.

(3) In exercising its discretion with respect to costs related to an action under subsection 16(1), the court may consider any special circumstance, including whether the action is a test case or raises a novel point of law.

22. (1) Any resident of Canada or entity, regardless of whether they are directly affected by the matter in respect of which relief is sought, has standing before the Federal Court to review a government decision that would otherwise be open to judicial review pursuant to section 18.1 of the Federal Courts Act provided that

(a) the matter arises in the context of environmental protection;

(b) the applicant raises a serious issue;

(c) the applicant has a genuine interest in the matter; and

(d) there is no other reasonable or effective way for the matter to get before the court.

(2) An application for judicial review brought under this section must be brought in accordance with the provisions of the Federal Courts Act and Federal Courts Rules.

Civil Action

23. (1) Every resident of Canada or entity may seek recourse in the superior courts of the relevant province to protect the environment by bringing a civil action against a person who has contravened, or is likely to contravene, an Act of Parliament or a regulation made under an Act of Parliament or other statutory instrument, if the contravention has resulted or will likely result in significant environmental harm.

(2) In a civil action under subsection (1), once the plaintiff has demonstrated a prima facie case of significant environmental harm, the onus is on the defendant to prove that its actions or inactions will not result in significant environmental harm.

(3) It is not a defence to a civil action under subsection (1) that

(a) the activity was authorized by an Act or a regulation or other statutory instrument, unless the defendant proves that the significant environmental harm is or was the inevitable result of carrying out the activity permitted by the Act or the regulation or other statutory instrument; or

(b) there is no reasonable or prudent alternative that would have prevented the envi- ronmental harm.

PART 3

EMPLOYEE REPRISAL PROTECTION

Application

24. Section 25 applies in respect of employees who are employed on or in connection with the operation of any federal source or federal work or undertaking and in respect of the employers of all such employees in their relations with those employees.

Complaint

25. (1) Any person may file a written complaint with the Canada Industrial Relations Board alleging that an employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer has taken reprisals against an employee on a prohibited ground.

(2) For the purposes of this section, an employer has taken reprisals against an employee if the employer has dismissed, disciplined, penalized, coerced, intimidated or harassed, or attempted to coerce, intimidate or harass, the employee.

(3) For the purposes of this section, an employer has taken reprisals on a prohibited ground if the employee in good faith did or has attempted to do any of the following for the purpose of protecting the environment

(a) participate in environmental decision-making as provided for in any policy or in this or any other Act of Parliament or in any regulation made under an Act of Parliament or other statutory instrument;

(b) apply for a review pursuant to section 13;

(c) apply for an investigation pursuant to section 14;

(d) seek the enforcement of any Act of Parliament or any regulation made under an Act of Parliament or other statutory instrument that seeks to protect the environment;

(e) provide information to an appropriate authority for the purposes of an investigation, review or hearing under this Act or regulations made under this Act;

(f) give evidence in a proceeding under this Act or regulations made under this Act; or

(g) refuse or state an intention of refusing to do anything that is an offence under this Act, if acting in good faith and on the basis of reasonable belief.

(4) An employer who takes reprisals against an employee on a prohibited ground is guilty of an offence and is liable on summary conviction to a fine of not more than $25,000.

(5) If an employer is convicted of an offence under subsection (4), the Board may, in addition to any other penalty imposed, order the employer to take or refrain from taking any action in relation to the employee, including the reinstatement of the employee to their former position or equivalent position or the payment to the employee of wages and benefits lost because of the reprisals.

PART 4

GENERAL

Examination of Bills and Regulations

26. The Auditor General shall, in accordance with such regulations as may be prescribed by the Governor in Council, examine every regulation transmitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Environmental Bill of Rights and the Auditor General shall report any such inconsistency to the House of Commons at the first convenient opportunity.

Regulations

27. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act.

PART 5

CONSEQUENTIAL AMENDMENT

Canadian Bill of Rights

28. Paragraph 1(a) of the Canadian Bill of Rights is replaced by the following:

(a) the right of the individual to life, liberty, security of the person, including the right to a healthy and ecologically balanced environment, and enjoyment of property, and the right not to be deprived thereof except by due process of law;