Canadian Environmental Protection Act, 1999: part 2
Part 2: Public Participation
- Environmental Registry
- Rights under Other Parts
- Voluntary Reports
- Investigation of Offences
- Environmental Protection Action
- Action to Prevent or Compensate Loss
- Other Matters
Definition of “environmental protection action”
11. In this Part, “environmental protection action” means an action under section 22.
Establishment of Environmental Registry
12. The Minister shall establish a registry, to be called the Environmental Registry, for the purpose of facilitating access to documents relating to matters under this Act.
Contents of Environmental Registry
13. (1) The Environmental Registry shall contain notices and other documents published or made publicly available by the Minister, and shall also include, subject to the Access to Information Act and the Privacy Act:
(a) notices of objection and of any approval granted under this Act;
(b) a copy of every policy and of every proposed regulation or order made under this Act; and
(c) copies of documents submitted to a court by the Minister relating to any environmental protection action.
Form and manner of Environmental Registry
(2) The Minister may determine the form of the Environmental Registry, how it is to be kept and how access to it is to be provided.
Protection from civil proceeding or prosecution
14. (1) Despite any other Act of Parliament, no civil or criminal proceedings may be brought against any person mentioned in subsection (2) for the full or partial disclosure in good faith of any notice or other document through the Environmental Registry or any consequences of its disclosure.
(2) The persons against whom the proceedings may not be brought are Her Majesty in Right of Canada, the Minister and any person acting on behalf of or under the direction of the Minister.
Rights under Other Parts
15. The rights conferred by this Part are in addition to the right to request the addition of a substance to the Priority Substance List, the right to file a notice of objection under Parts 1, 5, 7 and 11 and the right to request under Parts 5, 7 and 11 that a board of review be established under section 333.
16. (1) Where a person has knowledge of the commission or reasonable likelihood of the commission of an offence under this Act, but is not required to report the matter under this Act, the person may report any information relating to the offence or likely offence to an enforcement officer or any person to whom a report may be made under this Act.
Request for confidentiality
(2) The person making the report may request that their identity, and any information that could reasonably be expected to reveal their identity, not be disclosed.
Requirement for confidentiality
(3) No person shall disclose or cause to be disclosed the identity of a person who makes a request under subsection (2) or any information that could reasonably be expected to reveal their identity unless the person authorizes the disclosure in writing.
(4) Despite any other Act of Parliament, no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, by reason that
(a) the employee has made a report under subsection (1);
(b) the employee, acting in good faith and on the basis of reasonable belief, has refused or stated an intention of refusing to do anything that is an offence under this Act; or
(c) the employee, acting in good faith and on the basis of reasonable belief, has done or stated an intention of doing anything that is required to be done by or under this Act.
Investigation of Offences
Application for investigation by Minister
17. (1) An individual who is resident in Canada and at least 18 years of age may apply to the Minister for an investigation of any offence under this Act that the individual alleges has occurred.
Statement to accompany application
(2) The application shall include a solemn affirmation or declaration
(a) stating the name and address of the applicant;
(b) stating that the applicant is at least 18 years old and a resident of Canada;
(c) stating the nature of the alleged offence and the name of each person alleged to have contravened, or to have done something in contravention of, this Act or the regulations; and
(d) containing a concise statement of the evidence supporting the allegations of the applicant.
(3) The Minister may prescribe the form in which an application under this section is required to be made.
Investigation by Minister
18. The Minister shall acknowledge receipt of the application within 20 days of the receipt and shall investigate all matters that the Minister considers necessary to determine the facts relating to the alleged offence.
19. After acknowledging receipt of the application, the Minister shall report to the applicant every 90 days on the progress of the investigation and the action, if any, that the Minister has taken or proposes to take, and the Minister shall 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 before the end of the 90 days.
Minister may send evidence to Attorney General of Canada
20. At any stage of an investigation, the Minister may send any documents or other evidence to the Attorney General of Canada for consideration of whether an offence has been or is about to be committed under this Act and for any action that the Attorney General may wish to take.
Discontinuation of investigation
21. (1) The Minister may discontinue the investigation if the 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.
(2) If the investigation is discontinued, the Minister shall
(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 to any person whose conduct was investigated.
A copy of the report sent to a person whose conduct was investigated must not disclose the name or address of the applicant or any other personal information about them.
Environmental Protection Action
Circumstances when an individual may bring an action
22. (1) An individual who has applied for an investigation may bring an environmental protection action if
(a) the Minister failed to conduct an investigation and report within a reasonable time; or
(b) the Minister’s response to the investigation was unreasonable.
Nature of the action
(2) The action may be brought in any court of competent jurisdiction against a person who committed an offence under this Act that
(a) was alleged in the application for the investigation; and
(b) caused significant harm to the environment.
Relief that may be claimed
(3) In the action, the individual may claim 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 this Act;
(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 this Act;
(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; and
(e) any other appropriate relief, including the costs of the action, but not including damages.
Limitation period of two years
23. (1) An environmental protection action may be brought only within 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) The limitation period does not include any time following the plaintiff’s application for an investigation, but before the plaintiff receives a report under subsection 21(2).
No action for remedial conduct
24. An environmental protection action may not be brought if the alleged conduct
(a) was taken
to correct or mitigate harm or the risk of harm to the environment or to human, animal or plant life or health, or
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.
25. An environmental protection action may not be brought against a person if the person was convicted of an offence under this Act, or environmental protection alternative measures within the meaning of Part 10 were used to deal with the person, in respect of the alleged conduct on which the action is based.
Notice of the action
26. (1) The plaintiff in an environmental protection action shall give notice of the action to the Minister no later than 10 days after the document originating the action is first served on a defendant, and the Minister shall give notice of the action in the Environmental Registry as soon as possible after receipt of the plaintiff’s notice.
Notice of other matters
(2) In an environmental protection action,
(a) the court may order any party to the action to give notice to the Minister of any matter relating to the action, within the time specified by the court; and
(b) the Minister shall give notice of that matter in the Environmental Registry as soon as possible after receipt of the party’s notice.
Attorney General to be served
27. (1) A plaintiff shall 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 shall be given to the plaintiff and be included in the Environmental Registry within 45 days after the copy of the originating document is served on the Attorney General.
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.
28. (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.
Burden of proof
29. The offence alleged in an environmental protection action and the resulting significant harm are to be proved on a balance of probabilities.
30. (1) The following defences are available in an environmental protection action:
(a) the defence of due diligence in complying with this Act and the regulations;
(b) the defence that the alleged conduct is authorized by or under an Act of Parliament
(c) except with respect to Her Majesty in right of Canada or a federal source, the defence that the alleged conduct is authorized by or under a law of a government that is the subject of an order made under subsection 10(3); and
(d) 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
31. 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.
Stay or dismissal
32. (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 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.
33. If a court finds that the plaintiff is entitled to judgment in an environmental protection action, it may grant any relief mentioned in subsection 22(3).
Orders to negotiate plans
34. (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 the implementation of the plan and the progress made in achieving its purposes.
Before making the order, the court must take into account any efforts that the defendant has already made to deal with the harm.
(2) 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
(3) The court may appoint a person who is not a party 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
(4) 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
(5) The court may approve a plan that the parties negotiate or a plan prepared by a person appointed under subsection (3) and the approved plan comes into effect on a day determined by the court.
Restriction on orders to negotiate plans
35. A court may not 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
36. An 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
37. If 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.
38. 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.
Action to Prevent or Compensate Loss
39. Any person who suffers, or is about to suffer, loss or damage as a result of conduct that contravenes any provision of this Act or the regulations may seek an injunction from a court of competent jurisdiction ordering the person engaging in the conduct
(a) to refrain from doing anything that it appears to the court causes or will cause the loss or damage; or
(b) to do anything that it appears to the court prevents or will prevent the loss or damage.
Civil cause of action
40. Any person who has suffered loss or damage as a result of conduct that contravenes any provision of this Act or the regulations may, in any court of competent jurisdiction, bring an action to recover from the person who engaged in the conduct
(a) an amount equal to the loss or damage proved to have been suffered by the person; and
(b) an amount to compensate for the costs that the person incurs in connection with the matter and proceedings under this section.
Evidence of offence
41. (1) In an action under this Part, the record of proceedings in any court in which a defendant was convicted of an offence under this Act is evidence that the defendant committed the offence.
Certificate evidence of conviction
(2) In the action, evidence that a defendant was convicted of an offence under this Act may be given by a certificate stating with reasonable particularity the conviction and sentence of the defendant.
Signature of certificate
(3) The certificate shall be signed by
(a) the person who made the conviction; or
(b) the clerk of the court in which the conviction was made.
Once it is proved that the defendant is the offender mentioned in the certificate, it is evidence without proof of the signature or the official character of the person appearing to have signed it.
Civil remedies not affected
42. (1) No civil remedy for any conduct is suspended or affected by reason only that the conduct is an offence under this Act.
Remedies not repealed, etc.
(2) Nothing in this Act shall be interpreted so as to repeal, remove or reduce any remedy available to any person under any law in force in Canada.
Damages caused by a ship
(3) No claim for damage caused by a ship may be made under this Act to the extent that a claim for that damage may be made under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
1999, c. 33, s. 42; 2001, c. 6, s. 112.
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