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2nd Session, 41st Legislature

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Bill 220

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 »)

"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.

PART 3

ENFORCEMENT OF ENVIRONMENTAL RIGHTS

Court action to protect environment

8(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.

Defence

8(2)        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

9(1)        The plaintiff in an action under section 8 must serve the statement of claim on the Attorney General within 10 days after the statement of claim is filed.

Right of Attorney General

9(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

10          On the motion of the plaintiff in an action under section 8, the court may make any interim order the court considers necessary and just for the purpose of preventing or remediating environmental harm.

Remedies

11          If the court determines that the defendant in an action under section 8 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

12(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

12(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

13          A person is not prohibited from commencing an action under section 8 or 12 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

14          In order to provide fair and adequate representation of private and public interests, including governmental interests, involved in an action under section 8 or 12, the court may permit any person to participate in the action, as a party or otherwise.

Court action may be struck out

15          The court may on motion strike out an action commenced under section 8 or 12 on the ground that the action

(a) is scandalous, frivolous or vexatious;

(b) is an abuse of process; or

(c) does not disclose a reasonable cause of action.

PART 4

MISCELLANEOUS PROVISIONS

Other remedies preserved

16          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

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

Consultation with Indigenous peoples

18          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

19(1)       An employer must not take or threaten to take adverse employment action against an employee for

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

(b) providing information to an appropriate authority for the purposes of this Act; or

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

Complaint to Manitoba Labour Board

19(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"

19(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.

Crown bound

20          This Act binds the Crown.

Regulations

21          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

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

Coming into force

23          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.

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.

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.