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

Part 1 – Introductory Provisions

Definitions

1  In this Act:

"Board" means the Labour Relations Board established under the Labour Relations Code;

"Commissioner" means the Environmental Commissioner appointed under section 17 or 19;

"Court" means the Supreme Court of British Columbia;

"entity" means a body corporate, trust, partnership or fund, an unincorporated association, or organization that is authorized to carry on business in Canada or that has an office or property in Canada;

"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);

"environmental information" means the information outlined under subsection 8 (1);

"greenhouse gas" means a greenhouse gas as defined in the Greenhouse Gas Reduction Targets Act;

"healthy environment" means an environment of a quality that protects human and cultural dignity, health and well-being and in which biological diversity and essential ecological processes are preserved for their own sake, as well as for the benefit of present and future generations;

"minister" means a member of the Executive Council;

"municipality" means a municipality as defined in the Local Government Act;

"polluter pays principle" means the principle that a polluter must bear the cost of measures to reduce pollution based on either the extent of the damage done to society or the extent to which an acceptable level (standard) of pollution is exceeded;

"precautionary principle" means the principle that where there are threats of serious or irreversible damage to the environment, lack of full scientific certainty should not be used as a reason for postponing action to protect the environment;

"principle of environmental justice" means the principle that 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 or the BC Human Rights Code;

"principle of intergenerational equity" means the principle that 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;

"principle of limits to ecological capacity" means that human activities must ensure the long term health of ecosystems, through the acknowledgment of productive and assimilative limits;

"principle of progressivity" means that future governments can only improve, not weaken, environmental protections;

"principle of pro personae" means that the most comprehensive standard or expansive interpretation applies when considering or determining an individual’s human rights;

"public land" means land that belongs to Her Majesty in right of the Province or to a municipality; or

"registry" means the environmental registry established under subsection 8 (1) of the Environmental Bill of Rights Act, 2016.

Purposes of this Act

2  The purposes of this Act are set out as follows:

(a) safeguard the right of present and future generations to a healthy environment including a commitment to the principle of progressivity;

(b) confirm the Government of British Columbia’s public trust duty to protect the environment under its jurisdiction including:

(i) the advancement of environmental measures that anticipate, prevent and mitigate the causes of pollution and environmental degradation, or

(ii) to incorporate the intrinsic value that nature holds into all appropriate decision-making processes;

(c) ensure all British Columbians have access to

(i) adequate environmental information,

(ii) justice in an environmental context, and

(iii) effective mechanisms for participating in environmental decision-making;

(d) provide adequate legal protection against reprisals for employees who take action for the purpose of protecting the environment; and

(e) enhance public confidence in the implementation and enforcement of environmental law.

Scope of this Act

3  (1) This Act applies to all decisions emanating from a provincial source or related to provincial and municipal land.

(2) Nothing in this Act shall be construed as to abrogate or denigrate from the protection provided for existing aboriginal or treaty rights.

(3) Nothing in this Act shall remove existing protections or rights.

Interpretation

4  This Act must be interpreted consistently with the existing principles of environmental law, including but not limited to:

(a) the polluter pays principle,

(b) the precautionary principle,

(c) the principle of environmental justice,

(d) the principle of intergenerational equity,

(e) the principle of progressivity,

(f) the principle of pro personae, or

(g) the principle of limits to ecological capacity.

Part 2 – Environmental Rights and Obligations

Right to a healthy environment

5  (1) Every resident in British Columbia, including future generations have a right to a healthy environment, and a duty to protect the environment.

(2) The Government of British Columbia has an obligation, within its jurisdiction, to protect the right of every resident of British Columbia to a healthy environment.

(3) The Government of British Columbia is the trustee of British Columbia’s environment within its jurisdiction and has the obligation to preserve it in accordance with the public trust for the benefit of present and future generations.

(4) The Government of British Columbia shall ensure that all environmental standards in the province of British Columbia offer equal or superior protection compared to other Canadian provinces.

Access to information

6  (1) In order to contribute to the protection of the environmental rights of residents of British Columbia and entities, the Government of British Columbia shall ensure effective access to environmental information by making such information available to the public in a reasonable, timely and affordable fashion.

(2) The information outlined in subsection (1) shall be made available to the public in addition to any information disclosed under the Freedom of Information and Protection of Privacy Act.

(3) In addition to the commitments under subsection (1), the Government of BC shall publish a report on the state of the environment every 2 years, starting 1 year after the enactment of this Act.

Public participation

7  (1) Where a minister considers that a proposal under consideration in the minister’s department for a policy or Act could, if implemented, have a significant effect on the environment, and the minister considers that the public should have an opportunity to comment on the proposal before implementation, the minister shall do everything in the minister’s power to give notice of the proposal to the public at least 30 days before the proposal is implemented.

(2) Every resident of British Columbia has an interest in environmental protection and the Government of British Columbia shall not deny, oppose or otherwise contest any resident standing to participate in environmental decision-making or to appear before the courts in environmental matters solely because they lack a private or special legal interest in the matter.

Part 3 – Environmental Registry

Environmental registry

8  (1) The Minister shall establish an environmental registry containing

(a) proposals that, in the Minister’s opinion have significant impact on the environment,

(b) orders, directives, appeals, decisions and hearings under the Environmental Management Act,

(c) notices of a charge or lien given,

(d) policies, programs, standards, guidelines, objectives and approval processes established by the Ministry,

(e) convictions, penalties and other enforcement actions brought under this Act,

(f) information or documents required by the regulations to be included in the registry,

(g) annual reports, and

(h) any other information or document considered appropriate by the Minister.

(2) The environmental registry must be available electronically through the internet.

Public accessibility

9  All information contained within the registry must be accessible to the public, subject to the Freedom of Information and Protection of Privacy Act.

Part 4 – Statements of Environmental Values

Ministry statement of environmental values

10  Within three months after the date on which this section begins to apply to a ministry, the minister responsible shall prepare a draft ministry statement of environmental values that

(a) explains how the purposes of this Act are to be applied when decisions that might significantly affect the environment are made in the ministry, including the interpretation laid out in section 4; and

(b) explains how consideration of the purposes of this Act should be integrated with other considerations, including social, economic, and scientific considerations, that are part of decision-making in the ministry.

Public participation in statement

11  After the draft ministry statement of environmental values is prepared, and not later than three months after the day on which this section begins to apply to a ministry, the minister shall give notice to the public that he or she is developing the ministry statement of environmental values.

Notice

12  (1) Notice under this section shall be given in the registry and by any other means the Minister considers appropriate.

(2) Notice given under this section in the registry shall include the following:

(a) the text of the draft statement prepared under section 10 or a synopsis of the draft;

(b) a statement of how members of the public can obtain copies of the draft statement;

(c) a statement of when the minister expects to finalize the statement;

(d) an invitation to members of the public to submit written comments on the draft statement within a time specified in the notice;

(e) a description of any additional rights of participation in the development of the statement that the minister considers appropriate;

(f) an address to which members of the public may direct

(i) written comments on the draft statement,

(ii) written questions about the draft statement, and

(iii) written questions about the rights of members of the public to participate in developing the statement;

(g) any information prescribed by the regulations under this Act; and

(h) any other information that the minister considers appropriate.

Time for public comment

13  (1) The minister shall not finalize the ministry statement of environmental values until at least thirty days after giving the notice under this section.

(2) The minister shall consider allowing more than thirty days between giving the notice under this section and finalizing the statement in order to permit more informed public consultation on the statement.

(3) In considering how much time ought to be allowed under subsection (2), the minister shall consider the following factors:

(a) the complexity of the matters on which comments are invited;

(b) the level of public interest in the matters on which comments are invited;

(c) the period of time the public may require to make informed comment;

(d) any private or public interest, including any governmental interest, in resolving the matters on which comments are invited in a timely manner; and

(e) any other factor that the minister considers relevant.

Notice of final statement

14  (1) Within nine months after the day on which this section begins to apply to a ministry, the minister shall finalize the ministry statement of environmental values and give notice of it to the public.

(2) Notice under this section shall be given in the registry and by any other means the minister considers appropriate.

(3) The notice shall include a brief explanation of the effect, if any, of comments from members of the public on the development of the statement and any other information that the minister considers appropriate.

Amending the statement

15  (1) The minister responsible may amend the ministry statement of environmental values from time to time.

(2) Sections 10 to 14 apply with necessary modifications to amendments of the statement.

Effect of statement

16  The minister shall take every reasonable step to ensure that the ministry statement of environmental values is considered whenever decisions that might significantly affect the environment are made in the ministry.

Part 5 – Environmental Commissioner

Appointment of Commissioner

17  (1) On the recommendation of the Legislative Assembly, the Lieutenant Governor must appoint as the Environmental Commissioner a person who has been unanimously recommended by a special Committee of the Legislative Assembly for the appointment.

(2) The Commissioner is an officer of the Legislature.

(3) Subject to section 18, the Commissioner holds office for a term of 5 years.

Resignation, removal or suspension of the Commissioner

18  (1) The Commissioner may resign at any time by notifying the Speaker of the Legislative Assembly or, if there is no speaker or the speaker is absent from British Columbia, by notifying the clerk of the Legislative Assembly.

(2) The Lieutenant Governor in Council must remove the Commissioner from office or suspend the Commissioner for cause or incapacity on the recommendation of two thirds of the members present in the Legislative Assembly.

(3) If the Legislative Assembly is not sitting, the Lieutenant Governor in Council may suspend the Commissioner for cause or incapacity.

Acting Commissioner

19  (1) The Lieutenant Governor in Council may appoint an acting Commissioner if

(a) the office of the Commissioner is or becomes vacant when the Legislative Assembly is not sitting,

(b) the Commissioner is suspended when the Legislative Assembly is not sitting,

(c) the Commissioner is removed or suspended or the office of the Commissioner becomes vacant when the Legislative Assembly is sitting, but no recommendation is made by the Assembly under section 17 (1) before the end of the session, or

(d) the Commissioner is temporarily absent because of illness or for another reason.

(2) An acting Commissioner holds office until

(a) a person is appointed under section 17 (1),

(b) the suspension of the Commissioner ends,

(c) the Legislative Assembly has sat for 20 days after the date of the acting Commissioner’s appointment, or

(d) the Commissioner returns to office after a temporary absence.

Salary, expenses and benefits of the Commissioner

20  (1) A Commissioner appointed under section 17 (1) or 19 (1) is entitled

(a) to be paid, out of the consolidated revenue fund, a salary equal to the salary paid to the chief judge of the Provincial Court, and

(b) to be reimbursed for reasonable travelling and out of pocket expenses personally incurred in performing the duties of the office.

(2) The Lieutenant Governor in Council may, on terms and conditions the Lieutenant Governor in Council specifies, order that the Public Service Pension Plan, continued under the Public Sector Pension Plans Act, applies to the Commissioner.

(3) If an order is made under subsection (2), the Public Service Pension Plan applies subject to subsection (4).

(4) When calculating the amount of a pension under the Public Service Pension Plan, each year of service as Commissioner must be counted as 1 1/2 years of pensionable service.

Staff of the Commissioner

21  (1) The Commissioner may appoint, in accordance with the Public Service Act, employees necessary to enable the Commissioner to perform the duties of the office.

(2) The Commissioner may retain any consultants, mediators or other persons and may establish their remuneration and other terms and conditions of their retainers.

(3) The Public Service Act does not apply in respect of a person retained under subsection (2).

(4) The Commissioner may make a special report to the Legislative Assembly if, in the Commissioner’s opinion

(a) the amounts and establishment provided for the office of the Commissioner in the estimates, or

(b) the services provided by the BC Public Service Agency

are inadequate for fulfilling the duties of the office.

General powers of the Commissioner

22  (1) In addition to fulfilling the other duties of Commissioner under this Act, it is the function of the Commissioner to

(a) review the implementation of this Act and compliance in ministries with the requirements of this Act; including reviewing the statements of environmental values outlined in Part 4,

(b) at the request of a minister, provide guidance to the minister’s department on how to comply with the requirements of this Act,

(c) at the request of a minister, assist the minister’s department in providing educational programs about this Act,

(d) provide educational programs about this Act to the public,

(e) provide advice and assistance to members of the public who wish to participate in decision-making about a proposal as provided in this Act,

(f) review the use and public accessibility of the registry,

(g) review the exercise of discretion by ministers under this Act,

(h) review the receipt, handling and disposition of applications for investigation under Part 6 and applications for review under Part 7,

(i) review the use of the right of action set out in section 30, and

(j) review recourse to the procedure under Part 9 for complaints about employer reprisals.

(2) The Commissioner shall, in accordance with the regulations, examine every Bill introduced or presented to the Legislature by a minister, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of the Environmental Bill of Rights Act, 2016 and the Commissioner shall report any such inconsistency to the Legislative Assembly.

Reporting

23  (1) The Commissioner shall report annually to the Speaker of the Legislative Assembly who shall table the report in the Assembly as soon as reasonably possible.

(2) The annual report must include:

(a) a report on the work of the Commissioner and on whether the departments affected by this Act have co-operated with requests by the Commissioner for information;

(b) a summary of the information gathered by the Commissioner as a result of performing the functions set out in section 22;

(c) any information prescribed by the regulations; and

(d) any information that the Commissioner considers appropriate.

(3) The Commissioner may make a special report to the Speaker of the Assembly at any time on any matter related to this Act that, in the opinion of the Commissioner, should not be deferred until the annual report and the Speaker shall table the report in the Assembly as soon as possible.

24  (1) The Commissioner shall report annually to the Speaker of the Assembly on the progress of activities in the Province to reduce emissions of greenhouse gases, and the Speaker shall table the report in the Assembly as soon as reasonably possible.

(2) Each report under subsection (1) must include a review of any annual report on greenhouse gas reductions or climate change action plans published by the Government of the Province during the year covered by the report under subsection (1).

25  The Commissioner shall perform special assignments as required by the Assembly but such assignments must not take precedence over the other duties of the Commissioner under this Act.

Part 6 – Investigations

Right to request an investigation

26  (1) Any resident or entity of British Columbia that believe that an Act, regulation, or instrument prescribed by the regulations has been contravened, may apply to the Commissioner for an investigation by the appropriate minister of the alleged contravention.

(2) An application under subsection (1) must be in the form provided for that purpose by the office of the Commissioner and must include:

(a) the name and address of the applicant;

(b) that the applicant is at least 18 years old and a resident of British Columbia, if the applicant is an individual;

(c) the specific Act or regulation or other statutory instrument alleged to have been contravened;

(d) the nature of the alleged offence and the name of each person alleged to have committed the offence, or acted in a manner contrary to the specified Act or to the specified regulation or other statutory instrument; and

(e) in concise form, the evidence supporting the applicant’s allegations.

(3) An application under subsection (1) must also include a statement by each applicant or, where an applicant is a corporation, by a director or officer of the corporation, that the person believes that the facts alleged in the application are true.

(4) The statement referred to in subsection (3) must be sworn or solemnly affirmed before a person authorized by law to administer oaths and take and receive affidavits, declarations and affirmations within the Province.

Reporting

27  (1) Within 10 days of receiving an application under subsection 26 (1), the Commissioner shall refer it to the minister responsible for the administration of the Act under which the contravention is alleged to have been committed.

(2) The Minister referred to in subsection (1) must acknowledge receipt of the application within 20 days after receiving it and, subject to subsections (3) and (4), investigate all matters that the Minister considers necessary to determine the facts relating to the alleged offence.

(3) No investigation is required if the Minister determines that the application is frivolous or vexatious.

(4) If the Minister decides not to conduct an investigation, the Minister must, within 60 days after the application for investigation is received, give notice of the decision, with reasons, to the applicant.

(5) The Minister need not give the notice required by subsection (4) if a separate investigation in relation to the alleged offence is under way.

(6) The Minister shall report to the applicant and to the Commissioner on the progress of the investigation every 90 days until the resolution of the investigation.

(7) The Minister shall communicate the final results of the investigation in writing to the applicant and to the Commissioner.

Part 7 – Application for Review

Right to request a review

28  (1) Any resident or entity of British Columbia who believe that an existing policy, Act, regulation of the Province should be amended, repealed or revoked in order to protect the environment may apply to the Commissioner for a review by the appropriate minister of the policy, Act, regulation or instrument.

(2) Any resident or entity of British Columbia who believe that a new policy, Act or regulation of the Province should be made or passed in order to protect the environment, or ensure that the Government is meeting their requirements under section 5 (4) of this Act, may apply to the Commissioner for a review by the appropriate minister of the need for the new policy, Act or regulation.

(3) An application under subsection (1) or (2) must be in the form provided for that purpose by the office of the Commissioner and must include:

(a) the name and address of the applicant;

(b) that the applicant is at least 18 years old and a resident of British Columbia if applicable;

(c) an explanation of why the applicants believe that the review applied for should be undertaken in order to protect the environment; and

(d) a summary of the evidence supporting the applicants belief that the review applied for should be undertaken in order to protect the environment.

(4) An application under subsection (1) must clearly identify the policy, Act, regulation or instrument in respect of which a review is sought.

Reporting

29  (1) Within 10 days of receiving an application under subsection 28 (1), the Commissioner shall refer it to the minister responsible for the administration of the Act under which the contravention is alleged to have been committed.

(2) The Minister referred to in subsection (1) must acknowledge receipt of the application within 20 days after receiving it and, subject to subsection (3), investigate all matters that the Minister considers necessary to determine the facts relating to the alleged offence.

(3) The Minister shall decide whether to conduct a review within 60 days of acknowledgment of the request and communicate without delay his or her decision to the party requesting the review.

(4) The Minister shall report to the Commissioner on the progress of the review every 90 days.

(5) Upon conclusion of the review the Minister shall communicate the final results of the investigation in writing to the applicant and to the Commissioner.

Part 8 – Remedies

Environmental protection action against the government

30  (1) Every resident or entity of British Columbia may seek recourse in the Court to protect the environment by bringing an environmental protection action against the Province of British Columbia for

(a) failing to fulfill its duties as trustee of the environment,

(b) failing to enforce environmental law, or

(c) violating the right to a healthy environment.

(2) Actions under subsection (1) may be brought in relation to any action or inaction by the Government of British Columbia that has in whole or in part resulted, or is likely to result, in significant harm.

(3) Actions under subsection (1) are subject to a civil standard of proof and will be adjudicated on the basis of a balance of probabilities.

Interim order

31  (1) A plaintiff bringing an action under subsection 30 (1) may make a motion to the Court for an interim order to protect the subject matter of that action, when, in the Court’s opinion, significant environmental harm may occur before the action can be heard.

(2) An interim order will not be withheld on the grounds that the plaintiff is unable to provide an undertaking to pay damages.

(3) Any requirement to provide an undertaking to pay damages in support of the plaintiff’s application shall not exceed $1,000.

Factors to be considered

32  (1) In making an order under this Act, the Court may consider

(a) the nature of the environmental harm that has occurred or may occur;

(b) whether the harm resulted from or may result from an attempt to maximize business profits;

(c) the past conduct of the party; and

(d) all principles listed in section 4 (1).

(2) In making an order under subsection (1), the Court retains jurisdiction over the matter so as to ensure compliance with its order.

Powers of the Court

33  (1) Notwithstanding remedial provisions in other Acts, if the Court finds that the plaintiff is entitled to judgment in an action under subsection 30 (1), the Court may

(a) grant declaratory relief,

(b) grant an injunction to halt the contravention,

(c) order the parties to negotiate a restoration plan in respect of 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 in respect of any of its activities that may impair the environment,

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

(f) order the defendant to take specified preventative measures,

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

(h) order the appropriate minister to monitor compliance with the terms of any order, and

(i) make any other order that the Court considers just.

(2) If the Court finds that the plaintiff is entitled to judgment in an action under subsection 30 (1), the Court may

(a) suspend or cancel a permit or authorization issued to the defendant or the defendant’s right to obtain or hold a permit or authorization,

(b) order the defendant to provide financial collateral for the performance of a specified action,

(c) order the defendant to pay an amount to be used for the restoration or rehabilitation of the part of the environment harmed by the defendant, and

(d) order the defendant to pay an amount to be used for the enhancement or protection of the environment generally.

Terms of an order

34  (1) In making an order under this Act, the Court may issue

(a) a clean-up order,

(b) a restoration order, and

(c) an order to pay a fine that directs moneys to go to environmental protection or monitoring programs.

(2) In making an order under subsection (1), the Federal Court retains jurisdiction over the matter so as to ensure compliance with its order.

Costs

35  (1) A plaintiff bringing an action under section 30 (1) may only be ordered by the Court to pay costs if the action is found to be frivolous, vexatious or harassing.

(2) A plaintiff bringing an action under section 30 (1) may be entitled to

(a) counsel fees regardless of whether or not they were represented by counsel; and

(b) an advance cost award upon application to the Court if, in the opinion of the Court, it is in the public interest.

(3) In exercising its discretion with respect to costs related to an action under subsection 30 (1), the Court may consider any special circumstance, including whether the action is a test case or raises a novel point of law.

Part 9 – Employee Reprisal Protection

Filing a complaint

36  (1) Any person may file a written complaint with the Board alleging that an employer has taken reprisals against an employee on a prohibited ground.

(2) For the purposes of this section, an employer has taken reprisals against an employee if the employer has dismissed, disciplined, penalized, coerced, intimidated or harassed, or attempted to coerce, intimidate or harass, the employee.

(3) For the purposes of this section, an employer has taken reprisals on a prohibited ground if the employee in good faith did, or has attempted to do, any of the following for the purpose of protecting the environment:

(a) participate in environmental decision-making as provided for in any policy or in this or any other Act or in any regulation made under an Act or other statutory instrument;

(b) apply for a review pursuant to Part 6;

(c) apply for an investigation pursuant to Part 7;

(d) seek the enforcement of any Act or any regulation made under an Act or other statutory instrument that seeks to protect the environment;

(e) provide information to an appropriate authority for the purposes of an investigation, review or hearing under this Act or regulations made under this Act;

(f) give evidence in a proceeding under this Act or regulations made under this Act; or

(g) refuse or state an intention of refusing to do anything that is an offence under this Act, if acting in good faith and on the basis of reasonable belief.

37  (1) An employer who takes reprisals against an employee on a prohibited ground is guilty of an offence and is liable on summary conviction to a fine of not more than $25,000.

(2) If an employer is convicted of an offence under subsection (1), the Board may, in addition to any other penalty imposed, order the employer to take or refrain from taking any action in relation to the employee, including the reinstatement of the employee to their former position or equivalent position or the payment to the employee of wages and benefits lost because of the reprisals.

Part 10 – General

38  The Lieutenant Governor on Council may make regulations for carrying out the purposes and provisions of this Act.

39  This Act comes into force by regulation of the Lieutenant Governor on Council.

 
Explanatory Note

This Bill enacts the Environmental Bill of Rights Act, 2016, a piece of legislation intended to: safeguard the right of present and future generations to a healthy environment, confirm the Government of British Columbia's public trust duty to protect the environment under its jurisdiction, ensure that all British Columbians have access to environmental information and effective mechanisms for participating in environmental decision-making, provide legal protection for whistle blowers fulfilling the requirements of this Act, and enhance the public confidence in the implementation and enforcement of environmental law.

Specifically, this Bill:

(a) outlines principles that must be incorporated into government decision-making on decisions that will affect the environment;

(b) outlines the rights and obligations that residents, entities, and the Government of British Columbia possess with regards to the environment;

(c) creates an environmental registry to facilitate access to environmental information;

(d) requires ministries to develop a statement of environmental values, outlining how the purposes of this Act are being applied;

(e) creates a Commissioner of the Environment to oversee the implementation and maintenance of provisions under this Act;

(f) creates new tools for British Columbians to engage in environmental decision-making, including investigation and reviews;

(g) outlines the remedies British Columbians may seek if the Government violates this Act; and

(h) creates consequences for employers who take reprisals against employees who take action to protect the environment.