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Statutes of Newfoundland 1995


CHAPTER E-13

CHAPTER E-13.1

AN ACT RESPECTING THE PROTECTION OF THE ENVIRONMENT

(Assented to December 21, 1995)

Analysis

1. Short title

2. Definitions

3. Property in water

4. Water conservation studies

5. Minister's power re water

6. Approval of waterworks

7. Maintenance of waterworks

8. Approval of sewage works

9. Pollution prohibited

10. Public water supplies

11. Approval of commercial use

12. Stopping orders

13. Appeal

14. Regulations

15. Powers of inspectors

16. Access to records

17. Entry on land

18. Prohibition

19. Offences

20. Consent to prosecution

21. Action to recover costs

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


Short title

1. This Act may be cited as the Environment Act.

Definitions

2. In this Act

(a) "beneficial use" means a use of water, including the method of diversion, storage, transportation and application, that is reasonable and consistent with the public interest in the proper utilization of water resources, including but not limited to domestic, agricultural, industrial, power, municipal, navigational, fish and wild life and recreational uses;

(b) "body of water" means a surface or subterranean source of fresh or salt water within the jurisdiction of the province, whether that source usually contains water or not, and includes water above the bed of the sea that is within the jurisdiction of the province, a river, stream, brook, creek, watercourse, lake, pond, spring, lagoon, ravine, gully, canal and other flowing or standing water and the land usually or at a time occupied by that body of water;

(c) "land" means all land within the province and includes land covered by water;

(d) "licence" means a licence issued under this Act;

(e) "minister" means the minister responsible for the administration of this Act;

(f) "municipal authority" includes

(i) the City of St. John's,

(ii) the City of Corner Brook,

(iii) the City of Mount Pearl, and

(iv) a local service district committee or the council of a community, town or region constituted or continued under the Municipalities Act;

(g) "person" includes a body of persons whether incorporated or not;

(h) "pollution" means an alteration of the physical, chemical, biological or aesthetic properties of air, soil or waters of the province, including a change of temperature, taste or odour, or the addition of a liquid, solid, radio-active, gaseous or other substance to the air, soil or waters, or the removal of those substances from the air, soil or waters, which will render or is likely to render the air, soil or waters of the province harmful to the public health, safety or welfare, or harmful or less useful for domestic, agricultural, industrial, power, municipal, navigational, recreational or other lawful uses, or for animals, birds, or aquatic life;

(i) "sewage" includes residential, municipal, commercial or industrial waterborne or solid wastes, which would, if left untreated, cause pollution, but does not include drainage and storm water collected from natural run-off;

(j) "sewage works" means works for or incidental to the collection, transmission, treatment and disposal of sewage, or a part of those sewage works;

(k) "water resources" means all bodies of water in the province;

(l) "waterworks" means a public, commercial or industrial works for the collection, production, treatment, storage, supply and distribution of water, or a part of those waterworks; and

(m) "works" includes all property, buildings, erections, plant, machinery, installations, materials, dams, canals, devices, fittings, apparatus, appliances and equipment.

Property in water

3. (1) The property in and the right to the use and flow of all water at a time in a body of water in the province are for all purposes vested in the Crown, and no right to divert or use water or a body of water may be acquired by prescription.

(2) Notwithstanding subsection (1), the property in and the right to the use and flow of all water vested in the Crown by virtue of subsection (1) shall be subject to rights of property, use and flow conferred on a municipal authority or person by or under an Act of the province or a valid grant, lease, licence or other instrument.

(3) Nothing in this section or an Act of the province or a valid grant, lease, licence or other instrument shall confer or be construed to confer the right or privilege of water pollution to the degree beyond that which is prescribed by the regulations as constituting a polluted or unwholesome condition, or tending to that condition or a right or privilege which would have the effect of excluding or limiting the right of control conferred by this Act or the regulations on the minister in respect of the pollution of water, and those rights or privileges held immediately before December 18, 1989 whether those rights or privileges are held by an Act or by a valid grant, lease or licence or by the operation of law or otherwise are forever extinguished and barred.

Water conservation studies

4. (1) The minister may order studies to be made of bodies of water within the province for the purpose of assembling the fullest possible information on the quantity, quality, character, location and use or possible use of those bodies of water, and respecting matters which the minister considers advisable in the interests of the present or future conservation, development, control, improvement or proper utilization of those bodies of water or in the interests of the compilation of information of value to the province in or for that conservation, development, control, improvement or proper utilization.

(2) The minister shall make a written report to the Lieutenant-Governor in Council on the results of studies carried out under subsection (1), and copies of the report shall be laid before the House of Assembly at the next session after the report is made to the Lieutenant-Governor in Council.

(3) The minister shall, in the report referred to in subsection (2), make recommendations for carrying out the purpose and intent of this Act, including recommendations respecting reforestation or other ancillary water conservation, development or improvement measures.

Minister's power re water

5. Subject to the Municipal Affairs Act, the minister shall have control of

(a) the use of all surface, ground and shore waters;

(b) the allocation of the use of waters;

(c) pollution of air, soil and water originating within the jurisdiction of the province; and

(d) alteration of the natural features of a body of water and the natural movement of water in a body of water.

Approval of waterworks

6. (1) Where a municipal authority or person contemplates the establishment of waterworks, or the extension of or change in existing waterworks, the plans, specifications and an engineer's report of the water supply and the works to be undertaken, together with other information that the minister may require, shall be submitted to the minister, and no work shall be undertaken or proceeded with until the source of water supply and the proposed works have been approved, in writing by the minister.

(2) Where a municipal authority or person undertakes or proceeds with the establishment of waterworks or the extension of or change in an existing waterworks, without first obtaining the approval referred to in subsection (1), the minister may order an investigation of the works and the source of water supply and may order those changes to be made in the works or in the source of water supply, that the minister considers necessary, and the investigation and changes shall be made at the expense of the municipal authority or person.

(3) Where, in the opinion of the minister, it is in the public interest to do so, the minister may refuse to grant his or her approval or may grant his or her approval on those terms and conditions that the minister considers necessary.

(4) Where, in the opinion of the minister, the quality or property of water in an existing waterworks is in a polluted or unwholesome condition or an existing waterworks requires alteration, the minister may order the alteration or additions, that may be considered necessary, to be made by and at the expense of the municipal authority or person operating the waterworks and in a manner and within a time that the minister directs.

Maintenance of waterworks

7. Waterworks referred to in section 6 shall at all times be maintained, kept in repair and operated in a manner and with those facilities that the minister directs.

Approval of sewage works

8. (1) A person or municipal authority shall, before

(a) the construction of sewage works or the extension of or change in sewage works; or

(b) the construction of an industrial or processing works which will, when established and in operation, emit smoke, vapour or gas into the open air, or the extension or change in an existing industrial or processing works which will, when the extension or change is completed and in operation, emit smoke, vapour or gas into the open air,

submit to the minister the plans, specifications and an engineer's report of the works to be undertaken and the location of the discharge of the effluent or emission, together with other information that the minister may require, and the works shall not be undertaken or proceeded with until the proposed works have been approved in writing by the minister.

(2) Where a person or municipal authority undertakes or proceeds with the construction, extension or change of the works referred to in subsection (1), without first obtaining the approval referred to in that subsection, the minister may order an investigation of the works and the location of the discharge of effluent or emission and may order changes to be made in the works or in the location of the discharge of effluent or emission that the minister considers necessary, the investigation and changes to be made at the expense of the person or municipal authority.

(3) The minister may, after considering the plans, specifications, report and other information that may be required by the minister under subsection (1), and after considering also the regulations relating to qualities, properties and treatment of sewage or standards of emission for gaseous or particulate substances, grant approval to the construction of the proposed works, which approval may be given subject to those terms and conditions that may be warranted by the preceding considerations.

(4) Where, upon receiving information that

(a) sewage requires sewage works;

(b) existing sewage works require alteration; or

(c) smoke, vapour or gas that is emitted from industrial or processing works is likely to pollute the air,

the minister may order alterations or additions, that may be necessary, to be made by and at the expense of the municipal authority or person operating the facility and in a manner and within a time that the minister directs.

(5) The works referred to in subsection (1) shall at all times be maintained, kept in repair and operated in a manner and with those facilities that may be directed by the minister.

Pollution prohibited

9. Subject to the regulations, a municipal authority or person shall not discharge or deposit material of any kind into a body of water or on a shore or bank of a body of water or in a place that may cause pollution or impair the quality of water for a beneficial use.

Public water supplies

10. (1) The minister may define and prescribe an area surrounding a source of public water supply, and the municipal authority or person operating a waterworks and using water from that source shall

(a) give notice of the area so defined and prescribed by publication or otherwise; and

(b) protect that source of public water supply.

(2) In a defined and prescribed area, a person shall not

(a) place, deposit, discharge or allow to remain in the prescribed area material of a kind that might impair the quality of the water; or

(b) fish, bathe, swim or wash in or otherwise impair the quality of the water.

(3) Notwithstanding subsection (2), where the minister is satisfied upon the advice of his or her officials that the nature and size of a public water supply area is sufficiently large to preclude pollution by a person, the minister may define and prescribe a section of the public water supply area to be used by persons for fishing, boating, swimming, washing or other activity prescribed by the regulations.

Approval of commercial use

11. (1) Where a municipal authority or person contemplates a hydro-electric power project, a control dam, a river diversion, a drainage diversion or an alteration of a body of water or of water flow in it, the plans and other information that the minister may require shall be submitted to the minister, and no proposed work shall be undertaken or proceeded with until approved in writing by the minister.

(2) Subsection 8(3) shall apply to an approval by the minister under this section in so far as it affects a body of water to which subsection 3(2) applies.

Stopping orders

12. (1) The minister may, on receiving a report from his or her officials or from the commission or a local advisory commission that a condition exists which is causing or is likely to cause pollution of the air, soil or a body of water, make an order to protect the environment from that condition and to prevent, restrict or prohibit an activity which in the minister's opinion is giving rise to or is likely to give rise to that condition and may make an order stopping works or operations, in this and the next succeeding section referred to as a "stopping order", either permanently or for a period that is specified in the order.

(2) The minister shall serve on the owner or person in charge of the works or the operations affected by the stopping order a copy of the order and a statement showing the reasons for the making of the order, and upon receipt of that copy and statement, the owner or person in charge of the works or operations shall ensure that the works or operations are stopped.

Appeal

13. (1) The owner or other person aggrieved by a stopping order may

(a) in the case of a stopping order directing a permanent stoppage, within 60 days from the date of the order; or

(b) in the case of a stopping order directing stoppage for a period that is not permanent, at a time during that period,

appeal against the order to a judge of the Trial Division by filing a notice of the appeal in the office of the Registrar of the Supreme Court and by serving a copy of the notice of appeal on the minister or deputy minister.

(2) Notwithstanding a rule or practice to the contrary, the notice of appeal shall

(a) set out in detail the allegations of the appellant and the grounds upon which the order is appealed against; and

(b) be signed by the appellant or the appellant's solicitor.

(3) The appellant shall, within 14 days after service of the notice of appeal under this section, apply to the judge for the appointment of a day for the hearing of the appeal and shall, not less than 14 days before the hearing, serve upon the deputy minister a written notice of the day appointed for the hearing.

(4) The minister shall produce before the judge hearing the appeal all papers and documents in his or her possession affecting the matter of the appeal.

(5) The judge shall hear the appeal and the evidence brought forward by the appellant and the Crown in a summary manner and shall decide the matter of the appeal by

(a) upholding, amending or revoking the stopping order after considering, upon all matters submitted to him or her, whether the works or operations did constitute a condition which did pollute or was likely to pollute the air, soil or a body of water; or

(b) making another decision which the judge considers to be proper in the circumstances,

and with power also to make orders as to costs for or against the appellant or the Crown and to fix the amount of the costs.

(6) An appeal may be taken from the decision of the judge of the Trial Division to the Court of Appeal upon a point of law raised upon the hearing of the appeal, and the rules governing appeals to that court from a decision of a judge of the Trial Division shall apply to appeals under this subsection.

(7) The filing of a notice of appeal under this section, or the appeal itself, shall not affect the stopping order, which shall remain in force pending the outcome of the appeal.

Regulations

14. (1) The Lieutenant-Governor in Council may make regulations

(a) providing for the inspection and testing of air, soil or bodies of water;

(b) prohibiting, restricting and regulating the use of water from a specified body of water generally for household, industrial, commercial or irrigation purposes;

(c) prescribing what qualities and properties of air, soil or water shall constitute a polluted condition or an unwholesome condition;

(d) preventing or restricting the pollution, discolouration or rendering unwholesome of bodies of water;

(e) prescribing standards of quality of water supplies intended for household, industrial or irrigation purposes, with power to adopt, with or without modification, published codes, rules or standards relating to water quality;

(f) subject to the terms and conditions of a permit issued under the regulations made under paragraph (h), regulating the qualities and properties of and prohibiting or restricting the discharge of sewage and waste effluents that may be discharged into sewage works, public sewage systems, bodies of water, sea waters from a source within the province, or on or into the soil;

(g) prescribing methods of treatment of sewage and waste effluents that may be discharged into sewage works, public sewage systems, bodies of water, sea waters from a source within the province, or on or into the soil;

(h) providing for the issuance of permits on terms and conditions that may be described in the permit to persons or groups of persons for the discharge of sewage and waste effluents, and in a permit provision may be made exempting those persons or groups from compliance in whole or in part with regulations made under paragraph (f);

(i) providing for the investigation of complaints of

(i) the pollution or rendering unwholesome of bodies of water,

(ii) acts tending to pollution or unwholesomeness, and

(iii) acts detrimental to the conservation, development, control, improvement or proper utilization of the water resources of the province;

(j) regulating the use for pleasure or recreation of bodies of water;

(k) requiring a person who has caused a body of water, or part of a body of water, or soil on an area of land to become polluted or unwholesome to cleanse, disinfect or purify it at his or her own cost and expense, and prescribing how and when that cleansing, disinfection or purification is to be carried out;

(l) regulating the use for pleasure or recreation of public water supplies under section 10;

(m) prescribing the type and manner of protection of water supplies under subsection 10(1);

(n) prescribing the types of activities for the purpose of subsection 10(3);

(o) regulating the method of the carrying on of businesses, trades or industries which in the opinion of the minister, if not so regulated, would or might cause pollution or the rendering unwholesome of a body of water or would or might be detrimental to the proper conservation, development, control, improvement or utilization of the water resources of the province;

(p) preventing or restricting the pollution of the air;

(q) providing for the investigation of complaints of air pollution;

(r) prescribing standards of emission for gaseous or particulate substances emitted to the air from a public, industrial or commercial works;

(s) preventing or restricting pollution of the soil;

(t) providing for the licensing of persons with respect to the use of water from a specified body of water or bodies of water generally for a specified household, industrial, commercial or irrigation purpose and fixing the licence fees payable by those persons at different amounts;

(u) providing for the form of licences and the terms and conditions upon which licences may be issued, refused, renewed, suspended or revoked;

(v) prohibiting persons from using water from a specified body of water or bodies of water generally for specified household, industrial, commercial or irrigation purpose, except under authority of a licence;

(w) requiring and prescribing returns, accounts, records and statements to be made by persons holding licences and other persons, the information to be given in those returns, accounts, records and statements, and by whom and in what manner and at what time they shall be made;

(x) providing for the holding of inquiries into a complaint referred to in paragraph (i) or into the operation of this Act or into a charge or complaint that a person has contravened this Act or the regulations, or has made a false statement in a form, return, account or statement required to be made under this Act or the regulations, or into another matter arising in the administration of this Act, and providing that the person holding the inquiry shall have all of the powers that are or may be conferred upon a commissioner by or under the Public Inquiries Act, including the power to take evidence under oath or affirmation;

(y) providing for the issuance by the minister of orders designed to prevent or remedy the pollution or rendering unwholesome of the air, soil or a body of water;

(z) providing for the appointment of inspectors and other officers to carry out and enforce this Act and the regulations and prescribing their powers, duties and functions;

(aa) adopting by reference in whole or in part with or without modification and a supplement or amendment

(i) regulations of the Government of Canada, and

(ii) a code, rule or standard adopted by a recognized engineering association in Canada, Great Britain or the United States of America,

relating or capable of application to matters set out in this section;

(bb) exempting from the regulations or a portion of the regulations a person or class of persons; and

(cc) generally, to give effect to the purpose of this Act.

(2) Regulations may be made under subsection (1) to apply to the whole of the province or may be restricted in their application to specified areas of the province and may be limited as to time or otherwise.

(3) A copy of regulations, codes, rules or standards and amendments or supplements made to them, as adopted by reference under paragraph (1)(aa) signed by the minister, shall be kept on record in the department and shall be available for inspection by members of the general public.

(4) The copy of regulations, codes, rules or standards referred to in subsection (3) as signed by the minister is the copy of the regulations, codes, rules or standards adopted or varied by the Lieutenant-Governor in Council under subsection (1), notwithstanding that a revised set of regulations, codes, rules or standards has been made.

(5) An alleged infringement of the regulations made under paragraph (1)(aa) is to be governed by the copy of the regulations, codes, rules or standards signed under subsection (3).

(6) A certificate of the minister that a document is a copy of regulations, codes, rules or standards or a supplement or amendment to them, or an extract of them, is, in the absence of evidence to the contrary, proof that the document is a true copy of the original.

(7) Every person who contravenes the regulations made under subsection (1) or an order made under the regulations is guilty of an offence and is liable on summary conviction to the penalty prescribed under subsection (8).

(8) The minister may, in regulations made under subsection (1), prescribe penalties for offences under subsection (7).

(9) The conviction of a person for contravening the regulations or an order made under the regulations shall not operate as a bar to further prosecution for the continued contravention of the regulation or order.

Powers of inspectors

15. An inspector or other officer appointed under this Act or the regulations may at all reasonable times, so long as it is reasonably necessary to determine compliance with this Act, enter on to land or a body of water for the purpose of carrying out his or her duties, powers and functions, including inspecting and testing air, soil or a body of water.

Access to records

16. The minister, or a person appointed by the minister for the purpose, shall have authority to inspect the works, books, accounts, papers and records of a person licensed to use water under the regulations made under paragraph 14(1)(t) as may be relevant to that use.

Entry on land

17. (1) The minister, after giving

(a) to the owner of land, where the owner is known and available and can easily be contacted; or

(b) to the occupier of occupied land, whether or not the occupier is the owner of the land, where the owner lives on a part of the land or is known and available and can easily be contacted,

reasonable notice, may authorize an engineer, agent, servant or worker employed by the minister to enter into and upon the land and survey the land and make those borings or sink those trial-pits and cut those trees that the minister considers necessary relative to the work under his or her control and where agreement cannot be reached between the minister and the party having ownership of the land as to compensation to be paid, the amount of compensation shall be ascertained in the manner provided by law for assessing the compensation payable where land is expropriated.

(2) The minister shall, by his or her engineers, agents, servants, and workers,

(a) in doing anything authorized by subsection (1), exercise reasonable precautions to prevent fires; and

(b) fill in, as soon as practicable, the borings and trial-pits referred to in subsection (1), as nearly as reasonably possible to the condition existing before the borings were made and the trial-pits were sunk.

Prohibition

18. A person shall not

(a) obstruct or interfere with an engineer, agent, servant or worker of the minister engaged in exercising, on behalf of the minister, a power under this Act; or

(b) interfere with an erection placed upon or work done on land under this Act.

Offences

19. (1) A municipal authority or person who contravenes this Act or the regulations or an order made under this Act or the regulations, or makes a false statement in an application, form, return, account, record, statement, or other document completed or made under this Act or the regulations, is guilty of an offence and is, where no penalty is specifically provided in this Act or the regulations, liable on summary conviction,

(a) in the case of a corporation, including a municipal authority, to a fine of not more than $25,000; and

(b) in the case of a person not being a municipal authority or corporation to a fine of not more than $1,000 and, in default of payment to imprisonment for a term not exceeding 6 months, or to both a fine and imprisonment.

(2) Every continuance for a day or a part of a day of the contravention referred to in subsection (1) constitutes a separate offence.

Consent to prosecution

20. A prosecution under this Act or the regulations shall not be taken except with the written consent of the minister.

Action to recover costs

21. Where pollution occurs and the person or municipal authority that the minister considers responsible for the occurrence of the pollution fails to do the things that the minister considers are appropriate to prevent, control, eliminate or ameliorate the pollution, the minister may take appropriate action to prevent, control, eliminate or ameliorate the pollution and the costs incurred by the minister in taking that action are a debt due the Crown and are recoverable from the person or municipal authority that the minister considers responsible for the occurrence of the pollution.

©Earl G. Tucker, Queen's Printer