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5th Session, 40th Legislature

This HTML version is provided for ease of use and is based on the bilingual version that was distributed in the Legislature after First Reading.

Bill 20

THE ENVIRONMENTAL RIGHTS ACT


Table of Contents Bilingual version (PDF) Explanatory Note

(Assented to                                         )

WHEREAS Manitobans share a deep concern for the environment and recognize its inherent value;

AND WHEREAS the protection of the environment is of special significance to Indigenous peoples;

AND WHEREAS Manitobans have a right to a healthy and ecologically balanced environment;

AND WHEREAS enhanced measures to protect the environment will safeguard the environmental rights of Manitobans and ensure that all Manitobans enjoy clean water, air and land;

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

PART 1

INTRODUCTORY PROVISIONS

Definitions

1           The following definitions apply in this Act.

"court" means the Court of Queen's Bench. (« tribunal »)

"department" means a department or branch of the government. (« ministère »)

"environment" means the components of the Earth and includes

(a) air, land and water;

(b) plant and animal life, including humans;

(c) all layers of the atmosphere; and

(d) the interacting natural systems that include the components referred to in clauses (a) to (c). (« environnement »)

"environmental commissioner" means the Environmental Commissioner appointed under section 21. (« commissaire à l'environnement »)

"significant environmental harm" means harm to the environment that is long lasting, difficult to reverse or irreversible, widespread or serious. (« préjudice environnemental grave »)

Purposes of this Act

2           The purposes of this Act are

(a) to protect the right of present and future generations to a healthy and ecologically balanced environment by the means provided in this Act;

(b) to confirm the government's responsibility to protect the environment within its jurisdiction;

(c) to ensure that Manitobans have access to sufficient environmental information and effective mechanisms for participating in environmental decision-making;

(d) to provide a means for Manitobans to take action to enforce environmental rights; and

(e) to provide legal protection against reprisals for employees who take action to protect the environment.

Environmental principles

3(1)        This Act is to be applied in a manner consistent with the following principles of environmental law:

1. Precautionary principle — If an activity raises threats of serious harm to the environment, precautionary measures should be taken even if it has not been fully established scientifically that the activity is harmful. In this context, the proponent of the activity, rather than the public, should bear the burden of proof.

2. Polluter pays principle — A polluter should bear responsibility for remedying contamination for which the polluter is responsible and must bear the costs of remediation.

3. Principle of sustainable development — Development should meet the needs of the present without compromising the ability of future generations to meet their own needs.

4. Principle of intergenerational equity — The current generation holds the environment in trust for future generations and has an obligation to use its resources in a way that leaves that environment in the same or better condition for future generations.

5. Principle of environmental justice — There should be a just distribution of environmental benefits and burdens among Manitobans.

Effect of principles

3(2)        Every department must consider the environmental principles set out in subsection (1) when making a decision on a matter that may have a significant effect on the environment.

PART 2

ENVIRONMENTAL RIGHTS

RIGHT TO A HEALTHY ENVIRONMENT

Environmental rights

4           Every resident of Manitoba has the right to a healthy and ecologically balanced environment and to enforce that right using the measures set out in this Act.

Government's obligation to protect environmental rights

5           The Government of Manitoba has an obligation, within its jurisdiction, to protect the environmental rights of Manitoba residents.

INFORMATION AND PARTICIPATION RIGHTS

Right to environmental information

6           To assist Manitoba residents in exercising their environmental rights under this Act, every department must take steps to make environmental information accessible to the public in a reasonable, timely and affordable way.

Right of participation

7           To assist Manitoba residents in exercising their environmental rights under this Act, every department must provide reasonable opportunities for public participation

(a) in the development and review of Acts, regulations and policies that may have a significant effect on the environment; and

(b) respecting the issuance of licences, permits or other authorizations prescribed by regulation.

REVIEW OF LAWS AND GOVERNMENT POLICIES

Right to request review — existing law or policy

8(1)        A resident of Manitoba who believes that an existing Act, regulation or government policy should be amended, repealed or revoked to protect the environment may apply to the environmental commissioner for a review of the Act, regulation or policy by the responsible minister.

Right to request review — need for new Act, regulation or policy

8(2)        A resident of Manitoba who believes that a new Act or regulation or government policy is required to protect the environment may apply to the environmental commissioner for a review of the need for the new Act, regulation or policy by the responsible minister.

Form of application

8(3)        An application under subsection (1) or (2) must be made in a form approved by the environmental commissioner and must include the following information:

(a) the name and address of the applicant;

(b) the Act, regulation or policy for which a review is requested;

(c) an explanation of why the applicant believes that the requested review should be undertaken;

(d) a summary of the evidence supporting the applicant's belief that the requested review should be undertaken.

Referral to minister

9(1)        Within 10 days after receiving an application for a review under section 8, the environmental commissioner must forward a copy of the application to the responsible minister.

Acknowledgment of receipt

9(2)        The minister must send a written acknowledgment of receiving an application to the applicant within 20 days after receiving the application from the environmental commissioner.

Decision within 60 days

9(3)        The minister must decide whether to conduct the requested review within 60 days after acknowledgment of the application and must communicate his or her decision without delay to the applicant and the environmental commissioner.

Report on review

9(4)        If the minister decides to conduct the requested review, he or she must report on the progress of the review to the applicant and the environmental commissioner every 90 days until the review has been completed.

Communicating final results

9(5)        The minister must communicate the final results of the review in writing to the applicant and the environmental commissioner.

INVESTIGATION OF ENVIRONMENTAL OFFENCES

Right to request investigation

10(1)       A resident of Manitoba who believes that the contravention of an Act or regulation has caused or will imminently cause significant environmental harm may apply to the environmental commissioner for an investigation into the alleged contravention by the responsible department.

Form of application

10(2)       An application must be made in a form approved by the environmental commissioner and must include the following information:

(a) the name and address of the applicant;

(b) the Act or regulation alleged to have been contravened;

(c) the nature of the alleged contravention;

(d) the name of each person alleged to have committed the contravention;

(e) a summary of the evidence supporting the applicant's allegations.

Statement of belief

10(3)       An application must also include a statement sworn or affirmed by the applicant that he or she believes that the facts alleged in the application are true.

Further information

10(4)       The environmental commissioner may request an applicant to provide any additional information about the application that he or she considers necessary.

Request for information from department

11(1)       Upon receiving an application for an investigation, the environmental commissioner may send a written notice to the responsible department requesting specified information about the matters raised in the application that may assist the environmental commissioner's consideration of the application.

Department must provide information

11(2)       Upon receiving a request from the environmental commissioner under subsection (1), the department must provide the environmental commissioner with the specified information or advise the commissioner if the information does not exist or cannot be located.

Directing department to conduct investigation

12(1)       The environmental commissioner may, in writing, direct the responsible department to investigate the contravention alleged in the application if he or she is of the opinion that

(a) there are reasonable grounds to believe that the alleged contravention has occurred;

(b) the contravention has caused or will imminently cause significant environmental harm; and

(c) an investigation would be in the public interest.

When no investigation required

12(2)       The environmental commissioner may decide not to direct an investigation if the department is conducting or has already conducted an investigation respecting the alleged contravention.

Material to department

12(3)       When the environmental commissioner directs a department to conduct an investigation, the environmental commissioner must forward to the department the application and any other information or documentation in the commissioner's possession that may assist the department in conducting the investigation.

Duty to investigate

12(4)       Upon receiving a direction to conduct an investigation, the department must investigate all matters necessary to determine the facts in relation to the contravention alleged in an application.

Notice to applicant

12(5)       The environmental commissioner must notify the applicant in writing as to whether the department has been directed to conduct an investigation under this section.

Report on investigation

13(1)       The responsible department must report on the progress of the investigation to the applicant and the environmental commissioner every 90 days until the investigation has been completed.

Communicating final results

13(2)       The responsible department must communicate the final results of the investigation in writing to the applicant and the environmental commissioner and indicate what action, if any, the department has taken or proposes to take as a result of the investigation.

PART 3

ENFORCEMENT OF

ENVIRONMENTAL RIGHTS

Court action to protect environment

14(1)       A resident of Manitoba may commence an action in court against a person who has contravened an Act or regulation if the contravention has caused or will imminently cause significant environmental harm.

Steps before action — application for investigation

14(2)       An action may not be commenced under subsection (1) unless the plaintiff has applied for an investigation into the contravention under Part 2.

Defence

14(3)       It is a defence to an action commenced under subsection (1) if the defendant satisfies the court that his or her conduct

(a) complies with a standard established by an Act or regulation; or

(b) is authorized by a licence, permit or other authorization and the defendant is complying with all terms and conditions of the licence, permit or other authorization.

Service on Attorney General

15(1)       The plaintiff in an action under section 14 must serve the statement of claim on the Attorney General within 10 days after the statement of claim is filed.

Right of Attorney General

15(2)       The Attorney General is entitled to present evidence and make submissions to the court in the action and to appeal a judgment in the action.

Interim order

16          On the motion of the plaintiff in an action under section 14, the court may make any interim order the court considers necessary and just for the purpose of preventing or remediating environmental harm.

Remedies

17          If the court determines that the defendant in an action under section 14 contravened an Act or regulation and that contravention caused or will imminently cause significant environmental harm, the court may do one or more of the following:

(a) grant declaratory relief;

(b) grant an injunction to halt the contravention;

(c) order the parties to negotiate a restoration plan respecting 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 respecting any of the activities that may harm the environment;

(e) order the defendant to clean up, restore or rehabilitate any part of the environment;

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

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

(h) order the responsible department to monitor compliance with the terms of any order;

(i) order the defendant to pay a fine that directs money to go to environmental protection or monitoring programs;

(j) make any other order the court considers just.

Court action against government

18(1)       A resident of Manitoba may commence an action in court against the government if

(a) the government has failed to enforce an Act or regulation; and

(b) that failure has resulted or will imminently result in significant environmental harm.

Declaratory judgment

18(2)       The court may issue a declaration against the government if it is satisfied that significant environmental harm has resulted or will imminently result from the government's failure to enforce an Act or regulation.

Standing in court action

19          A person is not prohibited from commencing an action under section 14 or 18 by reason only that the person is unable to show

(a) any greater or different right, harm or interest than any other person; or

(b) any financial or proprietary right or interest in the subject matter of the proceeding.

Participation in court action

20          In order to provide fair and adequate representation of private and public interests, including governmental interests, involved in an action under section 14 or 18, the court may permit any person to participate in the action, as a party or otherwise.

PART 4

ENVIRONMENTAL COMMISSIONER

APPOINTMENT

Appointment of Environmental Commissioner

21(1)       The Lieutenant Governor in Council must, on the recommendation of the Standing Committee of the Assembly on Legislative Affairs, appoint an Environmental Commissioner.

Appointment process

21(2)       If the position of environmental commissioner is vacant or if it will become vacant within six months because the term of office is scheduled to expire or the commissioner has resigned,

(a) the President of the Executive Council must, within one month of the vacancy or expected vacancy, convene a meeting of the Standing Committee on Legislative Affairs; and

(b) the Standing Committee must, within six months of the vacancy or expected vacancy, consider candidates for the position and make recommendations to the President of the Executive Council.

Officer of Assembly

22(1)       The environmental commissioner is an officer of the Assembly.

No other public office

22(2)       The environmental commissioner may not hold any other public office or engage in any partisan political activity.

Term of office

23(1)       The environmental commissioner is to hold office for a term of five years.

Re-appointment

23(2)       The environmental commissioner may be re-appointed for a second term of five years but may not hold office for more than two five-year terms.

Remuneration

24(1)       The environmental commissioner must be paid a salary fixed by the Lieutenant Governor in Council and is entitled to the same privileges of office as a civil servant who is not covered by a collective agreement.

No reduction of salary

24(2)       The salary of the environmental commissioner must not be reduced except on a resolution of the Assembly carried by a vote of 2/3 of the members voting in the Assembly.

Expenses

24(3)       The environmental commissioner must be reimbursed for reasonable travelling and out-of-pocket expenses incurred in carrying out his or her responsibilities.

Civil Service Superannuation Act applies

25(1)       The environmental commissioner and all persons employed under the commissioner are employees within the meaning of The Civil Service Superannuation Act.

Civil Service Act does not apply

25(2)       The environmental commissioner is not subject to The Civil Service Act.

Employees are civil servants

25(3)       The Civil Service Act applies to persons employed under the environmental commissioner.

RESIGNATION, REMOVAL OR SUSPENSION

Resignation

26(1)       The environmental commissioner may resign at any time by giving written notice to the Speaker of the Assembly or, if the Speaker is absent or there is no Speaker, to the Clerk of the Assembly.

Removal or suspension

26(2)       The Lieutenant Governor in Council may suspend or remove the environmental commissioner from office on a resolution of the Assembly carried by a vote of 2/3 of the members voting in the Assembly.

Suspension when Assembly not sitting

26(3)       If the Assembly is not sitting, the Lieutenant Governor in Council may suspend the environmental commissioner for cause or incapacity, but the suspension must not continue beyond the end of the next session of the Legislature.

ACTING ENVIRONMENTAL COMMISSIONER

Acting environmental commissioner

27(1)       The Lieutenant Governor in Council may appoint an acting environmental commissioner if the office of environmental commissioner is vacant or if the environmental commissioner is suspended or is absent for an extended period because of illness or another reason.

Responsibilities of acting environmental commissioner

27(2)       An acting environmental commissioner must carry out the responsibilities and may exercise the powers of the environmental commissioner.

Term of acting environmental commissioner

27(3)       An acting environmental commissioner holds office until a new environmental commissioner is appointed, or until the environmental commissioner returns to office after a suspension or extended absence.

RESPONSIBILITIES

Mediating environmental disputes

28          The environmental commissioner may mediate a dispute between two or more parties respecting conduct that is alleged to have caused significant environmental harm, if requested by the parties to the dispute.

Responsibilities of the environmental commissioner

29          In addition to fulfilling his or her other duties under this Act, the environmental commissioner's responsibilities are as follows:

(a) to review the implementation and ongoing operation of this Act;

(b) to review government compliance with this Act;

(c) to provide or assist in providing educational programs about this Act to departments and the public;

(d) to provide advice and assistance to members of the public who wish to participate in decision-making or to enforce environmental rights as provided in this Act.

Annual report to Assembly

30(1)       The environmental commissioner must report annually to the Speaker of the Assembly on the work of the commissioner during the year.

Tabling the report

30(2)       The Speaker must table a copy of the report in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

Special reports

31          The environmental commissioner may publish a special report at any time on any matter related to this Act that the commissioner considers should not be deferred until the annual report.

PART 5

MISCELLANEOUS PROVISIONS

Other remedies preserved

32          Nothing in this Act is to be construed as repealing, removing or reducing any existing remedy available at law to any person.

Application of Farm Practices Protection Act

33          Nothing in this Act affects the operation or application of The Farm Practices Protection Act.

Consultation with Indigenous peoples

34          Nothing in this Act affects the aboriginal or treaty rights of Indigenous peoples that are recognized and affirmed by section 35 of the Constitution Act, 1982, including any duty of consultation by the Crown about any decision or action that may affect the exercise of aboriginal or treaty rights of Indigenous peoples of Manitoba.

Protection of employee from adverse employment action

35(1)       An employer must not take or threaten to take adverse employment action against an employee for

(a) applying for a review under section 8 or an investigation under section 10;

(b) seeking the enforcement of any Act or regulation that seeks to protect the environment;

(c) providing information to an appropriate authority for the purposes of a review, investigation or hearing under this Act; or

(d) giving evidence in a proceeding under this Act.

Complaint to Manitoba Labour Board

35(2)       An employee who alleges that adverse employment action has been taken against him or her may file a written complaint with the Manitoba Labour Board. Sections 28 and 29 of The Public Interest Disclosure (Whistleblower Protection) Act apply to the complaint, with necessary changes.

Meaning of "adverse employment action"

35(3)       In this section, "adverse employment action" means an act or omission by an employer or a person acting on behalf of an employer that adversely affects an employee's employment or working conditions, including a disciplinary measure, transfer, demotion, layoff or termination.

Regulations

36          The Lieutenant Governor in Council may make regulations

(a) prescribing licences, permits and authorizations for the purpose of clause 7(b);

(b) providing for exemptions from any provision of this Act;

(c) defining any word or phrase used but not defined in this Act;

(d) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

C.C.S.M. reference

37          This Act may be referred to as chapter E127 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

38          This Act comes into force on the day it receives royal assent.

Explanatory Note

This Bill formally recognizes that Manitoba residents have the right to a healthy and ecologically balanced environment and that the government has an obligation to protect the environment.

Government Decision-Making

Government departments are required to consider certain fundamental environmental principles when making decisions that might have a significant effect on the environment.

Information and Public Participation Rights

To help the public participate more fully in environmental decision-making, government departments must make environmental information publicly accessible and provide reasonable opportunities for participation in environmental decision-making.

Right to Request Reviews and Investigations

Residents may request the government to review an Act, regulation or policy if they believe the Act, regulation or policy should be amended or a new one made in order to protect the environment. Residents may also apply for an investigation if they believe that the contravention of an Act or regulation has caused environmental damage.

Access to Court

The Bill contains two provisions intended to enhance public access to the courts in order to protect the environment. First, a resident may commence an action against someone who has contravened an Act or regulation and caused environmental damage. (In the past, a person had to suffer specific damage to their own land or personal interests to be able to sue an environmental offender.) Secondly, a resident may commence an action against the government if the government fails to enforce an Act or regulation and the failure results in environmental damage.

Independent Oversight

An Environmental Commissioner is to be appointed. The commissioner must review the implementation and ongoing operation of the Act, including government compliance. The commissioner has a role to play in educating and assisting government departments and the public about the Act and in mediating environmental disputes.

Employee Protection from Reprisals

An employee who uses a measure set out in the Bill to protect the environment is protected from any reprisal from their employer.