Canada: Québec’s Sustainable Development Act Adopted

Québec’s Bill 118 entitled the Sustainable Development Act ("Bill 118") initially tabled on June 13, 2005 was unanimously adopted by the members of the National Assembly on April 13, 2006, assented to on April 19, 2006 and came into force on the same date. It represents the legislative centerpiece towards implementing Québec's Sustainable Development Plan (the "Plan") originally tabled in November 2004. The Plan as well as Bill 118 in its initial draft form were the object of a series of regional public consultations between February 17 and May 17, 2005 and a parliamentary commission between October and December, 2005 which resulted in the submission of more than 570 briefs which, after review by the Ministère du développement durable, de l'environnement et des Parcs (the Ministry of Sustainable Development, Environment and Parks (the "MSDEP")) led to the tabling of Bill 118.

Sustainable Development Measures In Government Action

The purpose of Bill 118 is to set up a new management framework within the Québec Government and its administration to ensure that powers and responsibilities are exercised in the pursuit of sustainable development. More specifically, the measures introduced by Bill 118 are intended to ensure that government actions in the area of sustainable development are coherent and to enhance the accountability of the Administration in that area, in particular through the controls exercised by the Sustainable Development Commissioner. Section 2 of Bill 118 provides that within the scope of the measures it proposes, "sustainable development" should aim at development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

Strategy And Guiding Principles

The implementation of sustainable development will be based on the strategy that must be adopted by the Government before April 19, 2007. The strategy must state the selected approach, the main issues, the directions or areas of intervention, and the objectives to be pursued by the Administration in the area of sustainable development. The MSDEP will be required to submit a first list of sustainable development indicators to the Government for approval and adoption no later than one year following the adoption of the strategy.

Review Of The Strategy

A status report is required to be presented following periodic review of the strategy based on indicators or other criteria set out in the strategy to monitor or measure progress in the economic, social and environmental fields. Furthermore, the Government must review the whole content of the strategy every five years. The Government may, however, differ a review for a period not exceeding two years. The strategy and its periodical review must be tabled by the Province’s Premier before the National Assembly.

In order to better integrate the pursuit of sustainable development into the areas of Administrative action, Bill 118 sets forth 16 principles by which governmental action must now be framed:

  1. Health and quality of life;
  2. Social equity and solidarity;
  3. Environmental protection;
  4. Economic efficiency;
  5. Participation and commitment;
  6. Access to knowledge;
  7. Subsidiarity;
  8. Intergovernmental partnership and cooperation;
  9. Prevention;
  10. Precaution;
  11. Protection of cultural heritage;
  12. Biodiversity preservation;
  13. Respect for ecosystem support capacity;
  14. Responsible production and consumption;
  15. Polluter pays;
  16. Internalization of costs.

Administrative Objectives

Section 13 of Bill 118 establishes the Minister’s obligations in ensuring the achievement of Bill 118’s objectives. Section 15 of Bill 118 provides that each Government department, agency and enterprise in the Administration must identify, in a document to be made public, the specific objectives it intends to pursue (including the review of existing statutes, regulations, policies or programs) in order to contribute to a progressive and compliant implementation of the strategy. They must also state in a special section of their annual report the objectives which had been set and the degree of achievement of these objectives. They are also required to provide the information needed by the MSDEP to develop, revise or assess the implementation of the strategy.

Sustainable Development Commissioner

As mentioned above, the Sustainable Development Commissioner will control the coherence and the accountability of the Administration in the area of sustainable development. Bill 118 thus amends the Québec Auditor General Act in order to create the position of Sustainable Development Commissioner who will act under the authority of the Auditor General of Québec. The principal task of the Commissioner will be to prepare a report stating:

  1. the Commissioner’s findings and recommendations respecting the performance of the Sustainable Development Act;
  2. any matter or case arising from auditing or investigations;
  3. the Commissioner’s comments concerning the principles, procedures or other methods used in the area of sustainable development by the Administration.

The role of the Commissioner is similar to that of the federal Commissioner of the Environment and Sustainable Development. In fact, the purpose of the federal Commissioner is to provide sustainable development monitoring and reporting on the progress of departments towards sustainable development. The federal Commissioner also reports on environmental petitions from Canadians asking the government to respond to concerns relating to the environment and sustainable development. Bill 118 requires the Auditor General to include the Sustainable Development Commissioner’s report in the annual or any special report prepared for the Québec National Assembly under the Auditor General Act (R.S.Q., c. V-5.01). Similarly, the federal Auditor General takes the environmental element into account when preparing his report to the House of Commons.

Québec’s Green Fund

Bill 118 also established a Green Fund that is dedicated to financing measures or activities that the Minister may carry out within the scope of his ministerial mandate. This fund is intended namely to support measures promoting sustainable development, particularly in relation to environmental objectives. Besides start-up funds to be allocated to the Green Fund by the Minister of Finance, monies deposited into the Green Fund will come from gifts, legacies and other contributions; the revenue derived from fees or other amounts collected under the Acts or regulations under the administration of the Minister; the fines paid by offenders for an offence against a provision of an Act or regulation under the administration of the Minister; the fees or other amounts collected by the Minister to compensate expenditure or costs incurred for measures the Minister is authorized to take and damages, including punitive damages, paid following a civil suit instituted on behalf of the Minister.

Charter Right To A Healthy Environment

Lastly, Bill 118 adds a new right to the economic and social rights listed in the Québec Charter of Human Rights and Freedoms (the "Québec Charter"). The amendment inserts the following provision after section 46 of the Québec Charter:

"46.1 Every person has a right to live in a healthy environment in which biodiversity is preserved, to the extent and according to the standards provided by law."

The violation of a right safeguarded by the Québec Charter can give rise not only to recourse to repair any damage caused by the breach of such right, but also to punitive damages. A recourse under the Québec Charter could therefore be significant and appears to go beyond the principle stated in section 19.1 of the Environment Quality Act that states, namely, the following:

"19.1. Every person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it, to the extent provided for by this act and the regulations, orders, approvals and authorizations issued under any section of this act [ … ]."

According to section 19.2, a judge of the Québec Superior Court may grant an injunction to prohibit any act or operation which interferes or might interfere with the exercise of a right conferred by the above cited section. However, the amendment to the Québec Charter goes further than an injunctive remedy since punitive damages may be sought.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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