Article originally published April 3, 2019 online in The Lawyer’s Daily
Across Canada, low-income persons and disadvantaged communities often bear a disproportionate burden of the adverse health and environmental impacts from contaminants that are discharged into air, land and water.
For example, research studies in larger cities – such as Hamilton, Toronto, Montreal and Halifax – have found that people in poorer neighbourhoods were exposed to higher concentrations of airborne pollutants than those in more affluent areas. In addition, chronic exposure to multiple sources of toxic substances have been linked to poorer health outcomes within affected communities.
Similarly, the waterborne mercury pollution at Grassy Narrows First Nation, and the cumulative air pollution at Aamjiwnaag First Nation near Sarnia’s “Chemical Valley,” are just two of the many well-documented instances where indigenous communities in Canada have been exposed to environmental contamination for prolonged periods of time.
The nexus between pollution, poverty, race and ethnicity has prompted various academics, lawyers, and non-governmental organizations to advocate legal reforms that facilitate access to environmental justice.
Environmental justice is usually described as the principle that environmental benefits and burdens should be equitably distributed among all persons, rather than allowing the majority of adverse impacts to be unfairly imposed upon poor people, visible minorities, or marginalized communities.
The environmental justice principle has a number of procedural dimensions, such as:
- providing all persons with an opportunity to meaningfully participate in all aspects of governmental decision-making that may affect their health or environment; and
- ensuring that all persons have full and timely access to information that is being used for decision-making purposes.
The environmental justice movement originated in the United States over four decades ago. At that time, civil rights activists aligned with environmental advocates to challenge the siting of hazardous waste facilities in predominantly African-American communities. The movement has since broadened its scope to address other forms of environmental inequality and discrimination.
In the early 1990s, the U.S. Environmental Protection Agency established a specialized office to coordinate and implement environmental justice programs. The Agency has defined environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”
Given the lengthy U.S. experience, it is clear that environmental justice is not a new concept. However, significant barriers to environmental justice still exist throughout Canada, including:
- the ongoing absence of a substantive public right to a clean and healthful environment;
- the broad discretion granted to governmental officials under environmental legislation, especially in relation to investigation and enforcement;
- the practical difficulty for members of the public to engage governmental policy-making, standard-setting and permit-issuing processes; and
- the cost, complexity and time-consuming nature of environmental litigation, as well as standing requirements and adverse cost risks in the courts.
In response to such concerns, many observers have argued that the Charter should include a right to environmental quality for all Canadians. However, this long overdue amendment has not yet occurred. By default, this means that litigants bringing Charter-based environmental challenges typically invoke sections 7 and/or 15. To date, these claims have not been successful in court, primarily for evidentiary reasons.
In the absence of a constitutional amendment, there have been periodic attempts to establish statutory environmental rights at the federal level. In 2015, for example, Bill C-202 was introduced in Parliament as a private member’s bill by MP Linda Duncan.
Among other things, the Bill is intended to ensure that “all Canadians have access to justice in the environmental context.” The Bill also expressly creates a substantive right to “a healthy and ecologically balanced environment,” and empowers Canadians to go to court to enforce this right. However, Bill C-202 has not progressed beyond First Reading.
At the sub-national level, most provinces and territories have passed or proposed statutory environmental rights. For example, Ontario’s Environmental Bill of Rights (EBR) has been in place for over 25 years.
The EBR establishes a mandatory public participation regime that applies whenever the province is proposing to make, amend, revoke or repeal environmental laws, regulations, policies and approvals. However, the EBR still lacks any substantive environmental rights, and some of the EBR’s oversight provisions and procedural safeguards have recently been weakened by the current government.
Despite the slow and sporadic progress in implementing environmental justice in Canada, there has been Parliamentary recognition of the importance of this principle. In 2017, for example, a standing committee report on the Canadian Environmental Protection Act, 1999 reviewed environmental justice considerations, and recommended that the Act should be amended to strengthen substantive and procedural environmental rights.
At present, there are other federal law reform initiatives that have considerable potential to advance environmental justice. For example, a Senate committee is currently reviewing Bill C-69, which, if enacted, will overhaul the federal environmental assessment process and other legislation. With some appropriate amendments, this Bill could substantially enhance public and indigenous participation in decision-making processes for major industrial and resource development projects.
This is particularly true in the context of climate change, which disproportionately impacts communities and people who generally are the least responsible for the ever-increasing atmospheric concentrations of carbon dioxide. Accordingly, mounting public demands for “climate justice” and looming climate lawsuits may serve as important catalysts in the overall fight for environmental justice in Canada.
[POST-SCRIPT: After this article was first published, MP Linda Duncan introduced Bill C-438 for First Reading in the House of Commons on April 5, 2019. This Bill proposes an updated version of the Canadian Environmental Bill of Rights.]