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Third Session, Thirty-Ninth Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 29

THE ENVIRONMENT AMENDMENT ACT


Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. E125 amended

1           The Environment Act is amended by this Act.

2(1)        Subsection 1(1) is amended

(a) in the part before clause (a),

(i) by adding "protection and" after "environmental", and

(ii) by adding "protected and" before "maintained"; and

(b) by striking out "and" at the end of clause (c), adding "and" at the end of clause (d) and adding the following after clause (d):

(e) prohibits the unauthorized release of pollutants having a significant adverse effect on the environment.

2(2)        Subsection 1(2) is amended

(a) by replacing the definition "public registry" with the following:

"public registry" means the registry established under section 17; (« registre public »)

(b) in the definition "class 1 development", by striking out "discharge" and substituting "release";

(c) in clause (a) of the definition "development", by striking out "emission or discharge" and substituting "release";

(d) by adding the following definitions:

"adverse effect" means impairment of or damage to the environment, including a negative effect on human health or safety; (« effet nocif »)

"greenhouse gas" means any of the following gases:

(a) carbon dioxide,

(b) methane,

(c) nitrous oxide,

(d) hydrofluorocarbons,

(e) perfluorocarbons,

(f) sulphur hexafluoride,

(g) any other gas prescribed by regulation; (« gaz à effet de serre »)

"person responsible for a pollutant" means

(a) the owner of the pollutant, and

(b) any other person having charge, management or control of the pollutant; (« responsable d'un polluant »)

"release" includes to spill, discharge, dispose of, spray, inject, inoculate, abandon, deposit, , pour, empty, throw, dump, place and exhaust, and to cause or allow to leak, seep or emit; (« émission »)

3(1)        Subsection 6(5) is amended

(a) by striking out the part before clause (a) and substituting "When requested by the minister, the commission must do one or more of the following in accordance with any terms of reference specified by the minister:";

(b) in clause (b), by adding "to the minister" at the end; and

(c) in clause (c),

(i) by adding "and report back to the minister" after "concerns", and

(ii) by striking out "and" at the end.

3(2)        The following is added after subsection 6(5):

Terms of reference

6(5.1)      When requesting the commission to do anything mentioned in subsection (5), the minister may specify the terms of reference that the commission is to follow in carrying out its duties.

4(1)        Clause 10(4)(a) is amended by striking out "central".

4(2)        The following is added after subsection 10(7):

Notice of decision

10(7.1)     If the minister decides not to request a public hearing on a proposal after receiving a recommendation from the director under subsection (7), the minister must give written notice of his or her decision to the objector. The notice must advise the objector that the decision can be appealed under section 28.

4(3)        Subsections 10(9) and (10) are amended by striking out "central registry" and substituting "public registry".

5           The following is added after subsection 11(10):

Notice of decision

11(10.1)    If the minister decides not to request a public hearing on a proposal after receiving a recommendation from the director under subsection (10), the minister must give written notice of his or her decision to the objector. The notice must advise the objector that the decision can be appealed under section 28.

6           The following is added after section 11 and before the centred heading "CLASS 3 DEVELOPMENTS":

MINISTER MAY CONSIDER CLASS 1 OR 2 PROPOSALS

Minister may consider Class 1 or 2 proposals

11.1        If a public hearing has been held or is to be held by the commission in respect of a proposal for a Class 1 or 2 development, the minister may, after giving written notice to the director and the proponent,

(a) in the case of a Class 1 development, exercise the director's powers to issue a licence or refuse to issue a licence under clause 10(8)(a) or (b) and perform the director's duties under subsections 10(9) and (10);

(b) in the case of a Class 2 development, exercise the director's powers to issue a licence or refuse to issue a licence under subsection 11(11)(a) or (b) and perform the director's duties under subsections 11(12) and 11(13).

The references to "the director" in those provisions are to be read as "the minister", with necessary changes.

7           Clause 12(7)(a) of the English version is amended by striking out "appropriate" and substituting "effective".

8           The following is added after section 12:

MISCELLANEOUS PROVISIONS RESPECTING PROPOSALS

Public consultations by proponent to be considered

12.0.1(1)   When considering a proposal, the director and the minister may take into account any public consultations on the proposed development conducted by the proponent.

Consultation results to commission

12.0.1(2)   If the commission holds public hearings on a proposal, the director or the minister may require the proponent to forward the results of any public consultations conducted by the proponent to the commission.

Climate change considerations

12.0.2      When considering a proposal, the director or minister must take into account — in addition to other potential environmental impacts of the proposed development — the amount of greenhouse gases to be generated by the proposed development and the energy efficiency of the proposed development.

9           The following is added after subsection 14(2):

Record of minor alteration decision

14(2.1)     If the director or minister approves a proposed alteration, he or she must file in the public registry

(a) a copy of the approval under subsection (2); and

(b) the name of a contact person in the department who can give information to the public about the proposed alteration.

10          Subsection 19(1) is amended

(a) by striking out "or order" wherever it occurs; and

(b) by striking out everything after "have been violated".

11          Section 20 is amended

(a) in clause (b), by striking out "discharged or emitted" and substituting "released"; and

(b) in clause (d), by striking out ", discharging, or emitting" and substituting "or releasing".

12          Section 24 is replaced with the following:

Environmental protection order

24(1)       If the director believes that

(a) a pollutant may be released, is being released, or has been released; and

(b) the release may cause, is causing or has caused an adverse effect on the environment;

the director may issue an environmental protection order against a person responsible for the pollutant.

Contents of environmental protection order

24(2)       An environmental protection order may require the person named in the order — by a deadline set out in the order — to take any steps that the director considers necessary to protect the environment, including one or more of the following:

(a) investigate the situation;

(b) measure the rate of release or the ambient concentration, or both, of the pollutant;

(c) take any action specified by the director to prevent or reduce the release of the pollutant;

(d) minimize or remedy the effects of the pollutant on the environment;

(e) restore the area affected by the release of the pollutant to a condition satisfactory to the director;

(f) monitor, measure, contain, remove, store, destroy or otherwise dispose of the pollutant, or reduce or prevent further releases of the pollutant;

(g) install, replace or alter any equipment or thing in order to control or eliminate the release of the pollutant;

(h) report on any matter ordered to be done, in accordance with directions set out in the order.

Consequences of failing to comply with order

24(3)       If a person fails to comply with an environmental protection order, the director or an environment officer may, without further notice to the person,

(a) carry out the measures specified in the order, or cause them to be carried out; and

(b) be accompanied by any other persons, and use any equipment, required to carry out the measures specified in the order.

13          The following is added after section 24:

Emergency action to protect environment

24.1        The director or an environment officer may take, or cause to be taken, any emergency action that he or she considers necessary to protect the environment if he or she believes that

(a) a pollutant may be released, is being released, or has been released; and

(b) the release may cause, is causing or has caused a significant adverse effect on the environment.

Order to pay costs

24.2(1)     The director may, by order, require

(a) a person who failed to comply with an environmental protection order to pay the costs of any action taken under subsection 24(3); or

(b) the person responsible for the pollutant in question to pay the costs of any emergency action taken under section 24.1.

Enforcement of order

24.2(2)     An order to pay costs under subsection (1) may be filed in the Court of Queen's Bench and enforced as if it were an order of that court.

14          Subsection 26(1) is amended by striking out "aggrieved" and substituting "affected".

15(1)       Subsection 27(1) is amended

(a) in clause (c), by adding "decision," before "order, instruction"; and

(b) in the part between clauses (e) and (f), by striking out "make an appeal to the minister" and substituting "file an appeal in writing with the minister".

15(2)       Subsection 27(2) is amended

(a) in the part before clause (a), by striking out "deems advisable do any or all of the following" and substituting "deems advisable,";

(b) by replacing clauses (a) to (d) with the following:

(a) in the case of an appeal of the director's decision not to recommend a public meeting or hearing on a proposal, request the commission to hold a public meeting or hearing on the proposal;

(b) refer the matter back to the director for reconsideration;

(c) make any decision that in his or her opinion ought to have been made by the director; or

(d) quash or vary the decision under appeal, or dismiss the appeal.

(c) by striking out everything after clause (d).

15(3)       Subsection 27(3) is replaced with the following:

L. G. in C. approval

27(3)        Before making a decision on an appeal in respect of the following matters, the minister must refer the proposed disposition to the Lieutenant Governor in Council for approval:

(a) the issuance of a licence by the director under clause 10(8)(a) or 11(11)(a);

(b) the refusal by the director to issue a licence under 10(8)(b) or 11(11)(b);

(c) the imposition of specifications, limits, terms and conditions on a licence issued by the director under clause 10(8)(a) or 11(11)(a).

15(4)       The following is added after subsection 27(3):

Notice

27(4)       The minister must notify the appellant about his or her decision in the prescribed manner within the following time periods:

(a) in the case of a proposed disposition that requires approval by the Lieutenant Governor in Council under subsection (3), within 30 days after the approval is given;

(b) in the case of any other decision in respect of a matter referred to in subsection (1), within seven days after the date of the minister's decision.

16(1)       Subsection 28(1) is replaced with the following:

Appeal of minister's decision

28(1)       A person who is affected by a decision of the minister made under section 10, 11 or 12 in relation to a proposal or a decision made under subsection 14(2) may file an appeal in writing with the minister. The appeal must set out the reasons for the appeal and must be filed within 30 days after the date of the decision.

Appeal to Lieutenant Governor in Council

28(1.1)     The minister must refer the appeal to the Lieutenant Governor in Council.

16(2)       Subsection 28(2) is replaced with the following:

Disposition of appeal

28(2)       When an appeal is referred to the Lieutenant Governor in Council, it may, on such considerations as it deems advisable,

(a) in the case of an appeal of the minister's decision not to request a public meeting or hearing on a proposal, request the commission to hold a public meeting or hearing on the proposal;

(b) refer the matter back to the minister for reconsideration;

(c) make any decision that in its opinion ought to have been made by the minister; or

(d) quash or vary the decision under appeal, or dismiss the appeal.

17          The following is added after section 30:

No unauthorized release of pollutants

30.1(1)     No person shall release or allow the release of a pollutant in an amount or concentration, or at a level or rate of release, that causes or may cause a significant adverse effect, unless expressly authorized or permitted to do so

(a) under this Act or the regulations;

(b) under another Act of the Legislature or an Act of Parliament, or a regulation made under one of those Acts; or

(c) by a licence, permit, order, instruction, directive or other approval or authorization issued or made under this Act, another Act of the Legislature or an Act of Parliament.

Exception re agricultural operations

30.1(2)     A person involved in an agricultural operation does not contravene subsection (1) if

(a) the release occurred through the use of normal farm practices; and

(b) the release itself and the conduct that led to the release does not contravene another provision of this Act, another Act of the Legislature or an Act of Parliament, or a regulation made under one of those Acts.

Duty to report release

30.1(3)     A person who releases or causes or allows the release of a pollutant that may cause, is causing or has caused an adverse effect must report the release, in accordance with the regulations, to

(a) the director;

(b) the person responsible for the pollutant, if the person reporting is not the person responsible for the pollutant but he or she knows or is readily able to determine the identity of that person; and

(c) any other person who the person reporting knows or ought to know may be directly affected by the release.

Reporting by person responsible for pollutant

30.1(4)     A person responsible for a pollutant that is released into the environment that may cause, is causing or has caused an adverse effect must report the release, in accordance with the regulations, to the persons referred to in subsection (3), unless he or she has reasonable grounds to believe that those persons are already aware of the release.

Definitions

30.1(5)     In this section, "agricultural operation" and "normal farm practice" have the same meanings as in The Farm Practices Protection Act.

No release of pollutants in excess of limits

30.2        No person shall release or allow the release of a pollutant in an amount or concentration, or at a level or rate of release, that exceeds the limit that is expressly provided under this Act, another Act of the Legislature, or an Act of Parliament, or in a regulation, licence, permit, order, instruction, directive or other approval or authorization issued or made under one of those Acts.

18          Subsection 41(1) is amended

(a) by adding the following after clause 41(1)(a):

(a.1) prescribing gases as greenhouse gases for the purpose of clause (g) of the definition "greenhouse gas" in subsection 1(2);

(b) in clause (j), by striking out "environmental and environmental health";

(c) by adding the following after clause (p):

(p.1) respecting the reporting of releases of pollutants under section 30.1, including exempting releases or classes of releases from the reporting requirements of section 30.1;

(d) by adding the following after clause (y):

(y.1) prescribing the manner of giving notice of any decision or matter under this Act;

Coming into force

19          This Act comes into force on a day to be fixed by proclamation.

Explanatory Note

This Bill amends The Environment Act.

To ensure that The Environment Act provides a comprehensive environmental protection regime, the Bill prohibits the unauthorized release of pollutants that have a significant negative impact on the environment.  This new provision supplements existing sections of the Act, which already make it an offence to contravene the Act, the regulations or any licence, permit or order issued under the Act.

An environmental protection order may be issued when the release of a harmful pollutant has occurred or might occur in the near future. The order can require the person responsible for the pollutant to take steps to protect the environment, including restoring an area affected by the pollutant. The director or an environment officer can take emergency action to protect the environment if the release of a pollutant has caused or could cause significant harm to the environment.

The Bill makes a number of changes to the environmental licensing process.  Public consultations conducted by a proponent on a proposed development may be taken into account when a decision is made on the proposal. The energy efficiency of a proposed development and the amount of greenhouse gases that will be released by a development must be taken into account when deciding whether to issue a licence for the proposed development. The minister may make decisions relating to certain classes of development.

The language in a number of provisions is updated and clarified.