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Bill C-438

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First Session, Forty-second Parliament,
64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019
HOUSE OF COMMONS OF CANADA
BILL C-438
An Act to enact the Canadian Environmental Bill of Rights and to make related amendments to other Acts
FIRST READING, April 5, 2019
Ms. Duncan
421575


SUMMARY
This enactment enacts the Canadian Environmental Bill of Rights, which provides that every person residing in Canada has the following rights:
(a)the right to a healthy and ecologically balanced environment;
(b)the right to reasonable, timely and affordable access to information regarding the environment;
(c)the right to effective, informed and timely public participation in decision-making regarding the environment, including in relation to any Act of Parliament respecting the environment and any environmental policy of the Government of Canada;
(d)the right to bring a matter regarding the protection of the environment before courts or tribunals; and
(e)the right to request a review of any Act of Parliament respecting the environment, any instrument made under such an Act or any environmental policy of the Government of Canada.
The enactment imposes corresponding obligations on the Government of Canada to take all reasonable measures to give effect to the rights conferred.
The enactment also provides for an application by a person residing in Canada for an investigation by the responsible Minister of an offence under any Act of Parliament respecting the environment other than the Canadian Environmental Protection Act, 1999. In addition, it provides for an environmental protection action to be brought by a person in respect of such an investigation as well as an environmental protection action to be brought by a person against a person who has contravened or is likely to contravene an Act of Parliament respecting the environment if certain conditions are met.
The enactment amends the Auditor General Act to allow petitions for the review of any Act of Parliament to be made respecting the environment, any instrument made under such an Act or any environmental policy of the Government of Canada.
The enactment amends the Federal Courts Act to allow an application for judicial review to be made by a person not directly affected by the matter in respect of which relief is sought if certain conditions are met, including the condition that the matter relate to the protection of the environment.
Finally, this enactment also amends the Canadian Bill of Rights to provide that the right of the individual to life, liberty and security of the person includes the right to a healthy and ecologically balanced environment.
Available on the House of Commons website at the following address:
www.ourcommons.ca


TABLE OF PROVISIONS
An Act to enact the Canadian Environmental Bill of Rights and to make related amendments to other Acts
Preamble
Short Title
1
Canadian Environmental Bill of Rights
Definitions and Interpretation
Definitions
2
Definitions
Interpretation
3
Rights of Indigenous peoples of Canada
Purpose
4
Purpose
Paramountcy of Principles of Environmental Law
5
Environmental law principles
PART 1
Environmental Rights and Duties
Right to a Healthy Environment
6
Right
Right to Access Information
7
Right
Right to Public Participation
8
Right
Right of Access to Courts
9
Right
Right to Request Review
10
Right
PART 2
Investigation of Offences
11
Definitions
12
Application to responsible Minister
13
Investigation by responsible Minister
14
Progress reports
15
Responsible Minister may send evidence to Attorney General of Canada
16
Discontinuation of investigation
PART 3
Environmental Protection Action
17
Action re investigation
18
Limitation period: two years
19
No action for remedial conduct
20
Notice of the action
21
Attorney General to be served
22
Other participants
23
Standard of proof
24
Prima facie case
25
Defences
26
Undertakings to pay damages
27
Stay or dismissal
28
Remedies
29
Orders to negotiate plans
30
Restriction on orders to negotiate plans
31
Settlement or discontinuance
32
Settlements and orders
33
Costs
PART 4
Employee Reprisal Protection
34
Definitions
PART 5
Related Amendments
Auditor General Act
35
Federal Courts Act
36
Canadian Bill of Rights
37


1st Session, 42nd Parliament,
64-65-66-67-68 Elizabeth II, 2015-2016-2017-2018-2019
HOUSE OF COMMONS OF CANADA
BILL C-438
An Act to enact the Canadian Environmental Bill of Rights and to make related amendments to other Acts
Preamble
Whereas Canadians share a deep concern for the environment and recognize its inherent value;
Whereas Canadians have an individual and collective right to a healthy and ecologically balanced environment;
Whereas Canadians understand that a healthy and ecologically balanced environment is inextricably linked to the health of individuals, families and communities as well as Canada’s economic, social and cultural security;
Whereas Canadians have an individual and collective responsibility to protect the environment for the benefit of present and future generations;
Whereas action or inaction that results in significant environmental harm could be regarded as compromising the life, liberty or security of the person and as contrary to section 7 of the Canadian Charter of Rights and Freedoms;
Whereas the Government of Canada is the trustee of the environment within its jurisdiction and is responsible for protecting the environment for present and future generations of Canadians;
Whereas the Government of Canada has made commitments to the international community on behalf of all Canadians to protect the environment for the benefit of the world;
Whereas public engagement in environmental protection enhances the Government of Canada’s ability to protect the environment;
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 seek improved access to courts and 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

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

Definitions and Interpretation

Definitions

Definitions
2The following definitions apply in this Act.
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). (environnement)
healthy and ecologically balanced environment means an environment of a quality that protects human and cultural dignity and human 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. (environnement sain et écologiquement équilibré)

Interpretation

Rights of Indigenous peoples of Canada
3(1)For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982 and in the United Nations Declaration on the Rights of Indigenous Peoples, adopted on September 13, 2007.
Definition of Indigenous peoples of Canada
(2)In subsection (1), Indigenous peoples of Canada has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982.

Purpose

Purpose
4The purpose of this Act is, within the legislative authority of the Parliament of Canada in relation to the environment,
(a)to safeguard the right of present and future generations of Canadians to a healthy and ecologically balanced environment;
(b)to confirm the Government of Canada’s public trust duty to protect the environment so as to preserve and protect the collective interest of Canadians in the quality of the environment for the benefit of present and future generations;
(c)to ensure that all Canadians have access to
(i)adequate information regarding the environment,
(ii)justice in an environmental context, and
(iii)effective mechanisms for participating in environmental decision-making; and
(d)to enhance public confidence in the administration and enforcement of environmental laws, including by allowing individuals to request reviews of laws, to apply for investigations of offences and to bring environmental protection actions.

Paramountcy of Principles of Environmental Law

Environmental law principles
5Every enactment must be interpreted consistently with existing and emerging principles of environmental law, including
(a)the precautionary principle according to which where there are threats of serious or irreversible damage to the environment, lack of full scientific certainty must not be used as a reason for postponing measures to prevent environmental degradation;
(b)the polluter-pays principle according to which polluters must bear the cost of measures to reduce pollution according to the extent of either the damage done to society or the exceeding of an acceptable level of pollution;
(c)the principle of sustainable development according to which development must meet the needs of the present without compromising the ability of future generations to meet their own needs;
(d)the principle of intergenerational equity according to which 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; and
(e)the principle of environmental justice according to which there should be a just 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.
PART 1

Environmental Rights and Duties

Right to a Healthy Environment

Right
6(1)Every person residing in Canada has the right to a healthy and ecologically balanced environment.
Duty to protect
(2)The Government of Canada has the duty to take all measures necessary to protect the right of every person residing in Canada to a healthy and ecologically balanced environment.

Right to Access Information

Right
7(1)Every person residing in Canada has the right to reasonable, timely and affordable access to information regarding the environment.
Duty to make information available
(2)The Government of Canada has the duty to ensure that information regarding the environment is made available in a reasonable, timely and affordable manner.

Right to Public Participation

Right
8(1)Every person residing in Canada has the right to effective, informed and timely public participation in decision-making regarding the environment, including in relation to any Act of Parliament respecting the environment, any instrument made under the authority of such an Act and any environmental policy of the Government of Canada.
Duty to provide opportunities
(2)The Government of Canada has the duty to ensure that opportunities are provided for effective, informed and timely public participation in decision-making regarding the environment, including in relation to any Act of Parliament respecting the environment, any instrument made under the authority of such an Act and any environmental policy of the Government of Canada.

Right of Access to Courts

Right
9(1)Every person residing in Canada has the right to bring a matter regarding the protection of the environment before a court or tribunal regardless of whether or not they are directly affected by the matter.
No challenge to standing
(2)The Government of Canada must not challenge the standing of a person residing in Canada to bring a matter regarding the protection of the environment before a court or tribunal on the sole ground that the person is not directly affected by the matter.

Right to Request Review

Right
10Every person residing in Canada has the right to request the Auditor General to review, in accordance with section 22 of the Auditor General Act, any Act of Parliament respecting the environment, any instrument made under the authority of such an Act or any environmental policy of the Government of Canada to determine whether, in order to ensure respect for the rights conferred under this Act, it should be amended, repealed or revoked.
PART 2

Investigation of Offences

Definitions
11The following definitions apply in this Part and in Part 3.
Act of Parliament means an Act of Parliament respecting the environment but does not include the Canadian Environmental Protection Act, 1999. (loi fédérale)
responsible Minister means the Minister responsible for the administration of the Act of Parliament that is the subject of an application under section 12, an investigation under section 13 or an environmental protection action under section 17. (ministre compétent)
Application to responsible Minister
12(1)A person residing in Canada may apply to the responsible Minister for an investigation of an offence under an Act of Parliament that the person alleges has occurred.
Statement to accompany application
(2)The application must include a solemn affirmation or declaration
(a)stating the name and address of the applicant;
(b)stating that the applicant is a resident of Canada;
(c)stating the nature of the alleged offence and the name of each person alleged to have contravened an Act of Parliament or a regulation made under such an Act; and
(d)containing a concise statement of the evidence supporting the allegations of the applicant.
Investigation by responsible Minister
13The responsible Minister must acknowledge receipt of the application within 20 days of the receipt and must investigate all matters that the responsible Minister considers necessary to determine the facts relating to the alleged offence.
Progress reports
14After acknowledging receipt of the application, the responsible Minister must report to the applicant every 90 days on the progress of the investigation and the action, if any, that the responsible Minister has taken or proposes to take, and the responsible Minister must include in the report an estimate of the time required to complete the investigation or to implement the action, but a report is not required if the investigation is discontinued under section 16 before the end of the 90 days.
Responsible Minister may send evidence to Attorney General of Canada
15At any stage of an investigation, the responsible Minister may send any documents or evidence to the Attorney General of Canada for consideration of whether an offence has been or is about to be committed under an Act of Parliament and for any action that the Attorney General may wish to take.
Discontinuation of investigation
16(1)The responsible Minister may discontinue an investigation if the responsible Minister is of the opinion that
(a)the alleged offence does not require further investigation; or
(b)the investigation does not substantiate the alleged offence.
Report
(2)If an investigation is discontinued, the responsible Minister must
(a)prepare a report in writing describing the information obtained during the investigation and stating the reasons for its discontinuation; and
(b)send a copy of the report to the applicant and any person whose conduct was investigated.
No disclosure
(3)If the applicant is an individual, a copy of the report sent to a person whose conduct was investigated must not disclose the applicant’s name or address or any other personal information about them.
PART 3

Environmental Protection Action

Action re investigation
17(1)A person residing in Canada who has applied for an investigation may bring an environmental protection action in any court of competent jurisdiction if
(a)the responsible Minister failed to conduct an investigation and report within a reasonable time, or the responsible Minister’s response to the investigation was unreasonable; and
(b)the action is brought against a person who, in the application for the investigation, was alleged to have committed an offence under an Act of Parliament that caused significant harm to the environment.
Action in absence of investigation
(2)Regardless of whether or not an application for an investigation has been made, a person residing in Canada may bring an environmental protection action in any court of competent jurisdiction against a person who has contravened, or is likely to contravene, any provision of an Act of Parliament or of any regulation made under such an Act if the contravention has caused or is likely to cause significant harm to the environment.
Relief sought
(3)In an action brought under subsection (1) or (2), the person may seek any or all of the following:
(a)a declaratory order;
(b)an order, including an interlocutory order, requiring the defendant to refrain from doing anything that, in the opinion of the court, may constitute an offence under any Act of Parliament respecting the environment;
(c)an order, including an interlocutory order, requiring the defendant to do anything that, in the opinion of the court, may prevent the continuation of an offence under an Act of Parliament;
(d)an order to the parties to negotiate a plan to correct or mitigate the harm to the environment or to human, animal or plant life or health, and to report to the court on the negotiations within a time set by the court;
(e)an order directing the defendant to pay, in the manner prescribed by the court, an amount for the purpose of the protection of the environment, including in respect of the restoration of any part of the environment harmed by the defendant and the administration of environmental protection programs; and
(f)any other appropriate relief, including the costs of the action, but not including damages.
Considerations
(4)In deciding whether to make an order claimed under paragraph (3)‍(b) or (c), the court may consider
(a)the nature of the harm to the environment that has occurred or is likely to occur;
(b)whether the harm results from an attempt to maximize business profits;
(c)the past conduct of the party;
(d)the precautionary principle; and
(e)the principle of intergenerational equity according to which 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.
Limitation period: two years
18(1)An environmental protection action may be brought subject to a limitation period of two years beginning when the plaintiff becomes aware of the conduct on which the action is based, or should have become aware of it.
Time during investigation not included
(2)In the case of an action brought under subsection 17(1), any time following the plaintiff’s application for an investigation before the plaintiff receives a report under subsection 16(2) is not included in the limitation period.
No action for remedial conduct
19An environmental protection action is not permitted to be brought if the alleged conduct
(a)was taken
(i)to correct or mitigate harm or the risk of harm to the environment or to human, animal or plant life or health, or
(ii)to protect national security, support humanitarian relief efforts, participate in multilateral military or peace-keeping activities under the auspices of international organizations or defend a member state of the North Atlantic Treaty Organization; and
(b)was reasonable and consistent with public safety.
Notice of the action
20(1)The plaintiff in an environmental protection action must, no later than 10 days after the document originating the action is first served on a defendant, give notice of the action to the Minister responsible for the Act under which the plaintiff alleges the offence was committed.
Notice of other matters
(2)In an environmental protection action, the court may order any party to the action to give notice to the responsible Minister of any matter relating to the action, within the time specified by the court.
Attorney General to be served
21(1)A plaintiff must serve the Attorney General of Canada with a copy of the document originating an environmental protection action within 20 days after first serving the document on a defendant.
Attorney General may participate
(2)The Attorney General of Canada is entitled to participate in the action, either as a party or otherwise. Notice of his or her decision to participate must be given to the plaintiff.
Right of appeal
(3)The Attorney General of Canada is entitled to appeal from a judgment in the action and to make submissions and present evidence in an appeal.
Other participants
22(1)A court may allow any person to participate in an environmental protection action in order to provide fair and adequate representation of the private and public interests involved.
Manner and terms of participation
(2)The court may determine the manner and terms of the person’s participation, including the payment of costs.
Standard of proof
23The offence alleged in an environmental protection action and the resulting significant harm are to be proved on a balance of probabilities.
Prima facie case
24In the case of an action brought under subsection 17(2), if the plaintiff demonstrates a prima facie case of significant harm to the environment or likely significant harm to the environment, the onus is on the defendant to prove that their action or inaction did not or is not likely to result in significant harm to the environment.
Defences
25(1)The following defences are available in an environmental protection action:
(a)the defence of due diligence in complying with the Act in question and its regulations;
(b)the defence that the alleged conduct is authorized by or under an Act of Parliament provided the defendant proves that the significant harm to the environment was the inevitable result of an authorized activity and there was no reasonable alternative that would have prevented the harm; and
(c)the defence of officially induced mistake of law.
Other defences not excluded
(2)This section does not limit the availability of any other defences.
Undertakings to pay damages
26(1)In deciding whether to dispense with an undertaking to pay damages caused by an interlocutory order in an environmental protection action, the court may consider any special circumstances, including whether the action is a test case or raises a novel point of law.
Plaintiff unable to give undertaking
(2)The court is not authorized to dismiss a motion for an interlocutory order on the sole ground that the plaintiff is unable to give an undertaking to pay damages.
Maximum amount
(3)The court is not authorized to require the plaintiff to provide for a sum of more than $1,000 in respect of an undertaking to pay damages.
Stay or dismissal
27(1)A court may stay or dismiss an environmental protection action if it is in the public interest to do so.
Factors to be considered
(2)In deciding whether to stay or dismiss the action, the court may consider
(a)environmental, health, safety, economic and social concerns;
(b)whether the issues raised in the action would be better resolved in some other way;
(c)whether the responsible Minister has an adequate plan to correct or mitigate the harm to the environment or human, animal or plant life or health or otherwise to address the issues raised in the action; and
(d)any other relevant matter.
Remedies
28If a court finds that the plaintiff is entitled to judgment in an environmental protection action, it may grant any relief mentioned in subsection 17(3).
Orders to negotiate plans
29(1)A court order to negotiate a plan to correct or mitigate the harm to the environment or human, animal or plant life or health may, to the extent that it is reasonable, practicable and ecologically sound, require the plan to provide for
(a)the prevention, reduction or elimination of the harm;
(b)the restoration of the environment;
(c)the restoration of all uses, including enjoyment, of the environment affected by the offence;
(d)the payment of money by the defendant as the court may direct to achieve the plan’s purposes; and
(e)monitoring of the implementation of the plan and the progress made in achieving its purposes.
Considerations
(2)Before making an order under subsection (1), the court must take into account any efforts that the defendant has already made to deal with the harm.
Other orders
(3)The court may also make interlocutory or ancillary orders to ensure that the negotiation of the plan runs smoothly, including orders
(a)for the payment of the costs of negotiation;
(b)requiring the plaintiff or the defendant to prepare a draft of the plan; and
(c)setting a time limit for the negotiations.
Appointment of other person to prepare plan
(4)The court may appoint a person who is not a party to the action to prepare a draft plan if the parties cannot agree on the plan or the court is not satisfied with the plan that they negotiate.
Order to prepare another plan
(5)The court may order the parties to prepare another plan if it is not satisfied with the plan that they negotiate.
Approval and effective date
(6)The court may approve a plan that the parties negotiate or a plan prepared by a person appointed under subsection (4) and the approved plan comes into effect on a day determined by the court.
Restriction on orders to negotiate plans
30A court is not authorized to order the negotiation of a plan to correct or mitigate the harm to the environment or human, animal or plant life or health if it determines that
(a)the harm has already been corrected or mitigated; or
(b)adequate measures to correct or mitigate the harm have already been ordered under this Act or any other law in force in Canada.
Settlement or discontinuance
31An environmental protection action may be settled or discontinued only with the approval of the court and on terms that it considers appropriate.
Settlements and orders
32If an environmental protection action results in an order of a court or a settlement approved by a court,
(a)the resolution of any question of fact by the order or settlement is binding on a court in any other environmental protection action in which that question arises; and
(b)no other environmental protection action may be brought with respect to the offence or alleged offence dealt with by the order or settlement.
Costs
33(1)In deciding whether to award costs in an environmental protection action, the court may consider any special circumstances, including whether the action is a test case or raises a novel point of law.
Award against the plaintiff
(2)The costs in the action may be awarded against the plaintiff only if the court is of the opinion that the action is frivolous or vexatious.
Part 4

Employee Reprisal Protection

Definitions
34(1)In this section, employer and employee have the same meanings as in section 2 of the Public Service Employment Act.
Reprisal — offence
(2)Despite any other Act of Parliament, an employer commits an offence if they dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee or deny an employee a benefit of employment, on the sole ground that the employee
(a)has exercised, or sought to exercise, any right conferred under any of the following provisions:
(i)subsection 7(1), 8(1), 12(1) or 17(1) or (2),
(ii)subsection 18.1(1.1) of the Federal Courts Act, or
(iii)section 22 of the Auditor General Act; or
(b)has provided information for the purposes of an investigation under this Act or given evidence in an environmental protection action under this Act.
Penalty
(3)Every person who commits an offence under subsection (2) is liable, on summary conviction, to a fine of not more than $25,000.

Related Amendments

R.‍S.‍, c. A-17

Auditor General Act

35Subsection 22(1) of the Auditor General Act is replaced by the following:
Petitions received
22(1)If the Auditor General receives a petition in writing from a resident of Canada about any of the following that is the responsibility of a category I department, the Auditor General shall make a record of the petition and forward the petition within fifteen days after the day on which it is received to the appropriate Minister for the department:
(a)an environmental matter in the context of sustainable development;
(b)in the context of the protection of the environment, a review of any Act of Parliament respecting the environment, any instrument made under the authority of such an Act or any environmental policy of the Government of Canada to determine whether, in order to ensure respect for the rights conferred under the Canadian Environmental Bill of Rights, it should be amended, repealed or revoked.
R.‍S.‍, c. F-7

Federal Courts Act

36Section 18.1 of the Federal Courts Act is amended by adding the following after subsection (1):
Exception — environmental protection
(1.1)Despite subsection (1), an application for judicial review may be made by anyone not directly affected by the matter in respect of which relief is sought, provided that
(a)the matter arises in the context of the protection of the environment;
(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.
1960, c. 44

Canadian Bill of Rights

37Paragraph 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, as defined in section 2 of the Canadian Environmental Bill of Rights, and enjoyment of property, and the right not to be deprived thereof except by due process of law;
Published under authority of the Speaker of the House of Commons

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