Environmental `Bill of rights’ a dangerous precedent

The Northwest Territories has become the first jurisdiction in Canada to have an “Environmental Bill of Rights.” While superficially attractive as a way of protecting the environment, the environmental bill-of-rights approach may prove to have serious drawbacks. It is to be hoped that other provinces and territories will reflect seriously before jumping on the bandwagon. This is of particular concern in Ontario, where Premier Bob Rae’s campaign promises foreshadowed such legislation.

The first problem with the bill is the cloak-and-dagger process that produced it. Bill 17, the Environmental Rights Act, was marked “CONFIDENTIAL: Not for release before 1st reading.” The bill was introduced without formal notice on Nov. 5. It received first, second and third readings on Nov. 5, and it received royal assent on Nov. 6. This unconscionable haste left no time for reflection or consultation. Essentially undemocratic, the process leaves the territories’ legislative assembly open to charges of immaturity and manipulation.

Under the bill, any person may obtain information from any minister regarding the release of “contaminants” into the environment. The individual may review licences, permits, approvals, reports, memoranda, results of tests, analyses, etc. The minister may refuse access on specific grounds, including trade secrets, but his decision is reviewable by a judge of the Northwest Territories Supreme Court.

The onus is on the minister to show that the information should not be provided.

Any two residents 19 years or older may apply to the minister for the investigation of an alleged release or a likely release of a contaminant. The minister must investigate and must report to the applicant within 90 days. He may discontinue the investigation if he is satisfied that there is no threat to the environment.

Any resident may institute a private prosecution in respect of certain specified Acts and regulations (including the Environmental Protection Act and the Transportation of Dangerous Goods Act). Note that if a conviction results, the person instituting the prosecution may receive a portion of the fine to defray his costs.

Any resident may commence an action in the Supreme Court against any person releasing a contaminant, whether or not the complainant is particularly affected or has any pecuniary or proprietary interest in the matter. A defence will be successful if the release is restricted to lands owned by the defendant, or if the release will not materially impair the quality of the environment, or if the defendant’s activity is in compliance with an approval or legislative standard.

Finally, an employer who imposes any penalty on an employee who has initiated any of the above actions is liable for a fine of up to $5,000 or 90 days’ imprisonment.

It is obvious that the new Environmental Bill of Rights exposes those companies operating in the Northwest Territories to a new set of rules. Regulation, which hitherto has been based on science and the professional judgment of officials, will be subject to the vagaries of lawyers and the courts. Moreover, new incentives exist for the capricious or malicious prosecution of operators by private individuals, whether or not they have a personal stake in the matter. There is a clear danger that operators will be subject to harassment by those who are opposed to their activities, whether for valid or merely ideological reasons.

This is a bad law, and the circumstances of its birth show that its proponents were reluctant to expose it to the light of serious examination. George Miller is the president of The Mining Association of Canada.