Bill S-243

2nd Session, 39th Parliament,

56-57 Elizabeth II, 2007-2008

senate of canada

BILL S-243

An Act respecting the office of the Commissioner of the Environment and Sustainable Development

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 Commissioner of the Environment and Sustainable Development Act.

INTERPRETATION

2. (1) The following definitions apply in this Act.

“appropriate Minister” has the meaning assigned by section 2 of the Financial Administration Act.

“category I department” means

(a) any department named in Schedule I to the Financial Administration Act;

(b) any department in respect of which a direction has been made under subsection 10(3); and

(c) any department set out in the schedule.

“Commissioner” means the Commissioner of the Environment and Sustainable Development appointed under subsection 3(1).

“department” has the meaning assigned by section 2 of the Financial Administration Act.

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

“sustainable development strategy”, with respect to a category I department, means the department’s objectives, and plans of action, to further sustainable development.

(2) In interpreting the expression “sustainable development” for the purposes of this Act, regard shall be had to the principle that sustainable development is a continually evolving concept based on the integration of social, economic and environmental concerns, which may be achieved by, among other things,

(a) the integration of the environment and the economy;

(b) protecting the health of Canadians;

(c) protecting ecosystems;

(d) meeting international obligations;

(e) promoting equity;

(f) an integrated approach to planning and making decisions that takes into account the environmental and natural resource costs of different economic options and the economic costs of different environmental and natural resource options;

(g) preventing pollution; and

(h) respect for nature and the needs of future generations.

COMMISSIONER OF THE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

3. (1) The Governor in Council shall, by commission under the Great Seal, appoint a Commissioner of the Environment and Sustainable Development after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.

(2) The Commissioner holds office during good behaviour for a term of 10 years but may be removed for cause by the Governor in Council on address of the Senate and House of Commons.

(3) Despite subsections (1) and (2), the Commissioner ceases to hold office on reaching 65 years of age.

(4) Once having served as the Commissioner, a person is not eligible for reappointment to that office.

(5) In the event of the absence or incapacity of the Commissioner or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person shall, while holding office, be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.

4. (1) The Commissioner shall be paid a salary equal to the salary of a puisne judge of the Supreme Court of Canada.

(2) The provisions of the Public Service Superannuation Act, other than those relating to tenure of office, apply to the Commissioner except that a person appointed as Commissioner from outside the public service may, by notice in writing given to the President of the Treasury Board not more than 60 days after the date of appointment as Commissioner, elect to participate in the pension plan provided for in the Diplomatic Service (Special) Superannuation Act in which case the provisions of that Act, other than those relating to tenure of office, apply to the Commissioner and the provisions of the Public Service Superannuation Act do not apply to the Commissioner.

POWERS AND DUTIES

5. The Commissioner shall provide sustainable development monitoring and reporting on the progress of category I departments toward sustainable development and shall make any examinations and inquiries that the Commissioner considers necessary in order to monitor

(a) the extent to which category I departments have met the objectives, and implemented the plans, set out in their sustainable development strategies laid before the Senate and the House of Commons under section 10; and

(b) the replies by Ministers required by subsection 11(3).

6. The Commissioner may advise appropriate officers and employees in the federal public administration of matters discovered in any examination and, in particular, may draw any such matter to the attention of officers and employees engaged in the conduct of the business of the Treasury Board.

7. The Commissioner shall report annually to the Senate and to the House of Commons, on or before December 31 in the year to which the report relates,

(a) on the work of the Commissioner’s office during that year;

(b) on whether, in carrying out the work of the Commissioner’s office, the Commissioner received all the information and explanations that the Commissioner required; and

(c) concerning anything that the Commissioner considers should be brought to the attention of the Senate and the House of Commons, in relation to environmental and other aspects of sustainable development, including

(i) the extent to which category I departments have met the objectives, and implemented the plans, set out in their sustainable development strategies laid before the Senate and the House of Commons under section 10,

(ii) the number of petitions recorded as required by subsection 11(1), the subject-matter of the petitions and their status, and

(iii) the exercising of the authority of the Governor in Council under any of subsections 10(3) to (5).

8. The Commissioner may, at any time, make an additional report to the Senate and the House of Commons referring to and commenting on any matter within the scope of the powers, duties and functions of the Commissioner where, in the opinion of the Commissioner, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the next annual report of the Commissioner under section 7.

9. Every report to the Senate and the House of Commons made by the Commissioner shall be transmitted to the Speaker of the Senate and to the Speaker of the House of Commons for tabling in those Houses.

SUSTAINABLE DEVELOPMENT STRATEGIES

10. (1) The appropriate Minister for each category I department shall cause the department to prepare a sustainable development strategy for the department and shall cause the strategy to be laid before the Senate and the House of Commons

(a) within two years after this subsection comes into force; or

(b) in the case of a department that becomes a category I department on a day after this subsection comes into force, before the earlier of the second anniversary of that day and a day fixed by the Governor in Council pursuant to subsection (4).

(2) The appropriate Minister for a category I department shall cause the sustainable development strategy of the department to be updated at least every three years and shall cause each updated strategy to be laid before the Senate and the House of Commons on any of the next 15 days on which the House is sitting after the strategy is updated.

(3) The Governor in Council may, on the recommendation of the appropriate Minister for a department not named in Schedule I to the Financial Administration Act, direct that the requirements of subsections (1) and (2) apply in respect of the department.

(4) On the recommendation of the appropriate Minister for a department that becomes a category I department after this subsection comes into force, the Governor in Council may, for the purpose of subsection (1), fix the day before which the sustainable development strategy of the department shall be laid before the Senate and the House of Commons.

(5) The Governor in Council may, on the recommendation of the Minister of the Environment, make regulations prescribing the form in which sustainable development strategies are to be prepared and the information required to be contained in them.

PETITIONS

11. (1) Where the Commissioner receives a petition in writing from a resident of Canada about an environmental matter in the context of sustainable development that is the responsibility of a category I department, the Commissioner shall make a record of the petition and forward the petition within 15 days after the day on which it is received to the appropriate Minister for the department.

(2) Within 15 days after the day on which the Minister receives the petition from the Commissioner, the Minister shall send to the person who made the petition an acknowledgement of receipt of the petition and shall send a copy of the acknowledgement to the Commissioner.

(3) The Minister shall consider the petition and send to the person who made it a reply that responds to it, and shall send a copy of the reply to the Commissioner, within

(a) 120 days after the day on which the Minister receives the petition from the Commissioner; or

(b) any longer time, where the Minister personally, within those 120 days, notifies the person who made the petition that it is not possible to reply within those 120 days and sends a copy of that notification to the Commissioner.

(4) Where the petition is from more than one person, it is sufficient for the Minister to send the acknowledgement and reply, and the notification, if any, to one or more of the petitioners rather than to all of them.

ACCESS TO INFORMATION

12. (1) Except as provided by any other Act of Parliament that expressly refers to this subsection, the Commissioner is entitled to free access at all convenient times to information that relates to the fulfilment of the Commissioner’s responsibilities, and is also entitled to require and receive from members of the federal public administration any information, reports and explanations that the Commissioner considers necessary for that purpose.

(2) The Commissioner shall require every person employed in the Commissioner’s office who is to examine the progress toward sustainable development by, or the sustainable development strategy of, a category I department pursuant to this Act to comply with any security requirements applicable to, and to take any oath of secrecy required to be taken by, persons employed in that department.

STAFF OF THE COMMISSIONER

13. (1) The officers and employees that are necessary to enable the Commissioner to perform the Commissioner’s duties are to be appointed in accordance with the Public Service Employment Act, and subject to subsections (2) to (5), the provisions of that Act apply to those officers and employees.

(2) The Commissioner may exercise the powers and perform the functions of the employer and deputy head under the Public Service Employment Act within the meaning of those terms in subsection 2(1) of that Act.

(3) The Commissioner may, in the manner and subject to the terms and conditions that the Public Service Commission directs, exercise the powers and perform the functions of that Commission under the Public Service Employment Act, other than its powers and functions in relation to the hearing of allegations by a candidate under sections 118 and 119 of that Act and its power to make regulations.

(4) The Commissioner may authorize any person employed in the Commissioner’s office to exercise and perform, in any manner and subject to any terms and conditions that the Commissioner directs, any of his or her powers and functions under subsections (2) and (3).

(5) Any person authorized under subsection (4) may, subject to and in accordance with the authorization, authorize one or more persons under that person’s jurisdiction to exercise any power or perform any function to which the authorization relates.

14. (1) The Commissioner is authorized, in respect of persons appointed in the Commissioner’s office, to exercise the powers and perform the functions of the Treasury Board that relate to human resources management within the meaning of paragraph 7(1)(e) and section 11.1 of the Financial Administration Act, as well as those of deputy heads under subsection 12(2) of that Act, as that subsection reads without regard to any terms and conditions that the Governor in Council may direct, including the determination of terms and conditions of employment and the responsibility for employer and employee relations.

(2) The Commissioner may authorize any person employed in the Commissioner’s office to exercise and perform, in any manner and subject to any terms and conditions that the Commissioner directs, any of his or her powers and functions in relation to human resources management.

(3) Any person authorized under subsection (2) may, subject to and in accordance with the authorization, authorize one or more persons under that person’s jurisdiction to exercise any power or perform any function to which the authorization relates.

15. Subject to any other Act of Parliament or regulations made under any Act of Parliament, but without the approval of the Treasury Board, the Commissioner may, within the total dollar limitations established for the Commissioner’s office in appropriation Acts, contract for professional services.

16. Classification standards may be prepared for persons employed in the office of the Commissioner to conform to the classifications that the Commissioner recognizes for the purposes of that office.

IMMUNITY

17. The Commissioner, or any person acting on behalf or under the direction of the Commissioner, is not a competent or compellable witness, in respect of any matter coming to the knowledge of the Commissioner or that person as a result of exercising any powers or performing any duties or functions of the Commissioner under this Act, in any proceedings other than a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Act.

18. (1) No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act.

(2) For the purposes of any law relating to defamation,

(a) anything said, any information supplied or any document or thing produced in good faith by or on behalf of the Commissioner, in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act, is privileged; and

(b) any report made in good faith by the Commissioner in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commissioner under this Act, and any fair and accurate account of the report made in good faith in a newspaper or any other periodical publication or in a broadcast, is privileged.

ESTIMATES

19. (1) The Commissioner shall annually prepare an estimate of the sums that will be required to be provided by Parliament for the payment of the salaries, allowances and expenses of the Commissioner’s office during the next ensuing fiscal year.

(2) The Commissioner may make a special report to the Senate and to the House of Commons in the event that amounts provided for the Commissioner’s office in the estimates submitted to Parliament are, in the Commissioner’s opinion, inadequate to enable the Commissioner to fulfil the responsibilities of the office.

20. The provisions of the Financial Administration Act with respect to the division of appropriations into allotments do not apply in respect of appropriations for the office of the Commissioner.

TRANSITIONAL PROVISIONS

21. (1) The person who holds the office of Commissioner of the Environment and Sustainable Development under the Auditor General Act immediately before the day on which subsection 3(1) of this Act comes into force is authorized to act as the Commissioner of the Environment and Sustainable Development under this Act until the appointment of a Commissioner under subsection 3(1).

(2) Despite subsection 3(4), a person is not ineligible for appointment under subsection 3(1) by reason only of having acted as the Commissioner of the Environment and Sustainable Development under subsection (1).

22. (1) Every regulation made under subsection 24(5) of the Auditor General Act that is in force on the coming into force of subsection 10(5) of this Act is deemed to have been made under subsection 10(5) of this Act and shall remain in force until it is repealed or amended pursuant to this Act.

(2) Every direction made by the Governor in Council under subsection 24(3) of the Auditor General Act that is in force on the coming into force of subsection 10(3) of this Act is deemed to have been made by the Governor in Council under subsection 10(3) of this Act.

RELATED AND CONSEQUENTIAL AMENDMENTS

ACCESS TO INFORMATION ACT

23. Subsection 16.1(1) of the Access to Information Act is amended by adding the following after paragraph (b):

(b.1) the Commissioner of the Environment and Sustainable Development;

24. Schedule I to the Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

Office of the Commissioner of the Environment and Sustainable Development

AUDITOR GENERAL ACT

25. The long title of the Auditor General Act is replaced by the following:

An Act respecting the office of the Auditor General of Canada

26. The definitions “appropriate Minister”, “category I department”, “Commissioner” and “sustainable development strategy” in section 2 of the Act are repealed.

27. (1) The portion of subsection 7(1) of the Act before paragraph (a) is replaced by the following:

7. (1) The Auditor General shall report annually to the House of Commons and may make, in addition to any special report made under subsection 8(1) or 19(2), not more than three additional reports in any year to the House of Commons

(2) Subsection 7(2) of the Act is amended by adding the word “or” at the end of paragraph (d), by striking out the word “or” at the end of paragraph (e) and by repealing paragraph (f).

28. Section 15.1 of the Act is repealed.

29. Sections 21.1 to 24 of the Act are repealed.

30. The schedule to the Act is repealed.

FINANCIAL ADMINISTRATION ACT

31. Schedule I.1 to the Financial Administration Act is amended by adding the following in alphabetical order in column I:

Office of the Commissioner of the Environment and Sustainable Development

32. Schedule IV to the Act is amended by adding the following in alphabetical order:

Office of the Commissioner of the Environment and Sustainable Development

33. Schedule VI to the Act is amended by adding the following in alphabetical order in column I of Part III:

Office of the Commissioner of the Environment and Sustainable Development

OFFICIAL LANGUAGES ACT

34. Subsection 24(3) of the Official Languages Act is amended by striking out the word “and” at the end of paragraph (d), by adding the word “and” at the end of paragraph (e) and by adding the following after paragraph (e):

(f) the Office of the Commissioner of the Environment and Sustainable Development.

PRIVACY ACT

35. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:

Office of the Commissioner of the Environment and Sustainable Development

PUBLIC SECTOR COMPENSATION ACT

36. Schedule I to the Public Sector Compensation Act is amended by adding the following in alphabetical order under the heading “Other Portions of the Public Service”:

Office of the Commissioner of the Environment and Sustainable Development

PUBLIC SERVANTS DISCLOSURE PROTECTION ACT

37. Schedule 2 to the Public Servants Disclosure Protection Act is amended by adding the following in alphabetical order:

Office of the Commissioner of the Environment and Sustainable Development

COMING INTO FORCE

38. (1) Subject to subsection (2), the provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

(2) No order may be made under subsection (1) unless the appropriation of moneys for the purposes of this Act has been recommended by the Governor General and such moneys have been appropriated by Parliament.