This consultation closes at 11:59 p.m. on:
November 27, 2019
We propose removing Section 172 of the Environmental Protection Act to address duplication and overlap between investigative powers outlined in the section as well as a board of negotiation that have not been used in over 15 years, and other more commonly used investigative powers and dispute resolution mechanisms.
To address duplication and overlap, the Ministry of Environment, Conservation and Parks (MECP) is proposing to repeal Section 172 of the Environmental Protection Act (EPA), which would eliminate the investigative powers established under the Section and the ability to establish a Board of Negotiation (BON).
Support for eliminating the Board of Negotiation
Section 172 of the EPA grants powers of investigation to the Minister of MECP where a person believes that a contaminant has caused, or is causing, injury or damage to livestock, crops, trees or other vegetation which may result in economic loss. It also allows a matter to be referred to a BON for negotiation of a claim for injury or damage. However, the powers of investigation under EPA Section 172 and engaging a BON are considered redundant:
- existing provisions in other sections of the EPA as well as in the Pesticides Act grant powers of investigation to Provincial Officers for the same types of complaints addressed by EPA Section 172
- like a BON, civil proceedings handle complaints of economic damage caused by contamination to livestock, crops, trees or other vegetation, with the added advantage that a binding court order may be obtained if a settlement is not reached
In addition, the provisions in Section 172 of the EPA have not been used in recent years:
- the Minister of MECP has not carried out an investigation under EPA Section 172 in over 15 years
- a BON has not been used in over 20 years
Purpose of EPA Section 172
Where a person believes that a contaminant has caused, or is causing, injury or damage to livestock, crops, trees or other vegetation which may result in economic loss, Section 172 of the EPA grants powers of investigation to the Minister of MECP and allows a person to request the establishment of a BON to negotiate a settlement.
When an incidence of contamination is suspected, a person may ask the Minister of MECP to investigate their complaint. Upon receiving the request, the Minister may choose to carry out an investigation and then prepare a report, which must be presented to the claimant and the person responsible for the source of the contaminant. The claimant must let the person responsible view the damage and remove samples or conduct tests to establish the cause of the damage.
If the parties involved are unable to settle the claim following the investigation and preparation of a report pertaining to the investigation, the claimant may provide notice to the person responsible and to the Minister that they desire to have the matter heard and negotiated by a BON.
If the parties are unable to settle the claim within thirty days after the notice is provided, the parties may choose to have the matter referred to the BON for negotiation of the claim for injury or damage. Notice of the negotiation should be provided to the BON indicating that the party requires a settlement of the claim to be negotiated.
The BON consists of two or more members appointed by the Lieutenant Governor in Council who must assess the injury or damage and meet with the parties to negotiate a settlement of claim in an informal manner. Settlements negotiated by the BON are made without prejudice to any subsequent procedure in relation to the matter.
If EPA Section 172 is repealed, administrative amendments to other regulations would be needed to remove references to the Section.
Repealing EPA Section 172 will not have an impact since the powers of investigation under the Section and the reach given to a BON are considered redundant. Additionally, the investigative powers established under EPA Section 172 have not been requested in over 15 years while a BON has not been requested in over 20 years.
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