16 Dec ENVIRONMENTAL RIGHTS IN ALBERTA: Module 2: Third Party Oversight
The Environmental Law Centre is publishing a series ofeducational materials concerning legal rights related to environmental quality. This work is in support of enacting laws that will foster environmental quality for future generations of Albertans.
ENVIRONMENTAL RIGHTS IN ALBERTA:
Module 2: Third Party Oversight and Environmental Rights
How can we ensure there is accountability to a right to a clean and healthy environment? One mechanism to create accountability and ensure enforcement of environmental rights is the provision of third party oversight. This paper reviews and analyzes the use of administrative third party oversight bodies in various Environmental Bill of Rights (EBR) frameworks. Our research focused on jurisdictions that have created or are planning to establish oversight bodies. One obvious outcome of the research is that the use of third party oversight bodies is very common in Canada. Third party oversight is usually performed through offices such as an ombudsman, commissioner, or auditor general. Independent oversight by these review bodies facilitates the enforcement of environmental rights and standards. Typical powers and duties of review bodies are monitoring, reporting on environmental performance and violations, and conducting reviews, examinations and investigations.
The review of various Canadian EBR regimes shows some similarities. The provinces have either established a specialist office (Environmental Commissioner) or have explicitly or implicitly given power to the Auditor General to carry out environmental audits. Based on the review of Ontario’s, BC’s, Alberta’s and Manitoba’s EBR framework and the federal Commissioner of Environment and Sustainable Development (CESD) the following conclusions are considered to be important for the office of a third party oversight body in order to improve existing regimes or those to come. The review of various third party oversight mechanisms provides Alberta with a path forward to strengthening its consideration and protection of environmental rights. In addition, we make recommendations for the design of a third party environmental oversight in Alberta.
#1: Specific mandate
We recommend that the third party oversight body receives a legal basis and mandate for review of environmental matters.
Currently, Alberta’s Auditor General does not have a specific environmental mandate but conducts financial audits or process/system audits of various environmental matters. An environment specific mandate is required to ensure broad consideration of environmental principles in policies and regulations.
It must be ensured that the third party oversight body is independent of government.
# 3: Report/review topics
One central obligation of review bodies is to report on specific topics relating to environmental rights. The third party oversight body should be tasked with reviewing and reporting on preassigned topics, such as GHG reductions, but also have the discretion to determine additional review topics that it considers important. The third party oversight body should report on a regular basis, for example at least once a year.
Alberta’s third party oversight body, whether the Auditor General or a prospective separate office, should be mandated to conduct specific preassigned reviews of environmental topics, such as water management, conservation and protection, climate change mitigation and adaption, and reduction of greenhouse gas emissions in Alberta.
#4: Binding character of recommendations
All review bodies surveyed in this report were assigned with the task of issuing reports on the status of compliance with environmental rights. However, in most cases, the existence or content of reports are only acknowledged by government. We recommend that the third party oversight body be authorized to issue recommendations which are either binding for the respective government entities or that a process is established to ensure that outcomes are considered and used to trigger change in the respective recommended area.
The Alberta Auditor General’s audit of the water supply management system in 2010 did not receive any Government response. Therefore, the Alberta framework should ensure that environmental audits or reviews trigger a response by the Government.
#5: Handling of petitions
The third party oversight body should be responsible for handling citizens’ petitions. That entails that Canadian residents are entitled to file petitions in environmental matters. The third party oversight body ensures that petitions are addressed by the responsible ministry and follows up on them. Public reporting regarding petitions should occur annually.
#6: Procedural rights
It is important that the third party oversight body receives specific procedural rights in order to fulfill all assigned tasks and responsibilities. These include:
- Access to required information
The third party oversight body must be able to access and request information that is necessary to prepare reports. Upon request, government entities must provide the required information or produce documents relevant to the review.
Government entities and organizations must be obliged to cooperate regarding requests by the third party oversight body, for example to access information, to carry out examinations and investigations, and to implement recommendations. It is advisable to create a mechanism/process to ensure such cooperation.
- Examinations and investigations
The third party oversight body will conduct examinations upon request by authorized entities such as the Legislative Assembly. It is advisable that the third party oversight body can also carry out examinations and investigations if it believes it is in public interest to ensure environmental rights.
The Alberta Auditor General Act stipulates the Auditor General’s right to access information and to carry out examinations and investigation. However, Alberta should ensure that the environmental third party oversight body’s work receives support and cooperation by governmental entities.
We look at publications from subject expert/authors such as Art English, John J. Carroll, Christopher Stone and others. We look at legislation and examples from other provinces including Ontario, British Columbia and the federal Commissioner of the Environment and Sustainable Development, as well as legislation that was proposed in Manitoba prior to the spring 2016 provincial election for existing practices and to develop our recommendations.
The Environmental Bill of Rights Program:
Phase 1 of the Environmental Law Centre’s Environmental Bill of Rights Program examines the current state of environmental rights in Alberta and several other jurisdictions, and makes a number of recommendations. Module 2 discusses issues around third party oversight and Module 3 delves into the need for and challenges of citizen enforcement. Phase 2 and future modules will consider costs of environmental rights, access to information and access to justice.
HAVE YOUR SAY:
The ELC wants to know what you think and encourage discussion about the issues that matter. Please participate in our online poll or share your thoughts in the comment section below.
The ELC would like to thank the Alberta Law Foundation for its support of the ELC’s Environmental Bill of Rights program.
The Environmental Law Centre (ELC) believes that law is the most powerful tool to protect the environment. Since it was founded in 1982, the ELC has been and continues to be Alberta’s only registered charity dedicated to providing credible, comprehensive and objective legal information regarding natural resources, energy and environmental law, policy and regulation in the Province of Alberta. The ELC’s mission is to educate and champion for strong laws and rights so all Albertans can enjoy clean water, clean air and a healthy environment.