By Joseph Castrilli
A private member’s bill that would have enshrined recognition of a right to a healthy environment in most federal environmental legislation was defeated by a 5:1 margin in Parliament in the first week of December 2023.
Bill C-219, the Canadian Environmental Bill of Rights sponsored by British Columbia MP Richard Cannings, failed to get beyond second reading debate in the House of Commons when over 250 members of Parliament voted against it.
In addition to recognizing a right to a healthy environment in most federal environmental laws, Bill C-219 would have enhanced the ability to enforce the right. This reform alone made the bill a distinct improvement over the existing remedy provisions of the Canadian Environmental Protection Act (CEPA) that have not been used once over the last two decades due to a variety of procedural obstacles in the legislation. Ironically, CEPA was excluded from the ambit of Bill C-219 because of concurrent government amendments to CEPA that became law in June 2023 but failed to reform that law’s enforcement provisions.
During Parliamentary debate on Bill C-219 in June 2023, the Bill’s sponsor, Mr. Cannings, noted that there are environmental bills of rights in Ontario, Quebec, Yukon, the Northwest Territories and Nunavut, but until CEPA was amended in June there was no federal law that explicitly recognized the right to a healthy environment in Canada. Mr. Cannings noted that with the enactment of amendments to CEPA we now have rights to a healthy environment, but those rights are limited to the scope of CEPA, and essentially to toxins within our environment, but no usable remedy in CEPA to enforce them. It was this gap that Bill C-219 was meant to fill at least in relation to other federal environmental laws.
However, Bill C-219 encountered stiff opposition in the House of Commons, including concerns about: (1) federal powers overstepping into provincial jurisdiction; and (2) too much authority being granted to the courts to decide environmental policy and the scope of environmental rights.
On the first point of concern, Mr. Cannings noted that none of the rights in Bill C-219 apply to matters that are found only in provincial legislation. However, to be sure, he asked the House of Commons legal department to provide an opinion on this matter. It concluded that:
“After having reviewed the bill carefully, we are of the opinion that the main subject of the bill is not the environment. Consider that the bill would not regulate any aspect of the environment, such as water quality, air quality, species at risk or toxic substances. Rather, the bill relates to civil liberties, which may be regulated by either level of government, depending on which level of government has legislative authority over the institutions and activities to which the civil liberties apply. In the case of Bill C-219, most provisions explicitly apply to federal matters only.”
The opinion also went on to explain why three provisions, while not explicitly applying to federal matters, would be considered by any court as applying to federal matters. Accordingly, the opinion stated that no amendment to Bill C-219 would be necessary.
On the second point of concern, it is a strange right if it cannot be vindicated by a court. The preference of some Parliamentarians during second reading debate on Bill C-219 for the approach adopted in the June 2023 amendments to CEPA whereby the government will determine how the right to a healthy environment will be interpreted in the government’s implementation of the Act does not on its face create a stand-alone “right” of individuals to a healthy environment. It is a regime entirely dependent on the will of government; i.e., the opposite of a rights-based approach to the law. A right requires a remedy for individuals to invoke in an independent forum (i.e., a court) when, for whatever reasons, government will not act. Such a remedy-based right is precisely what is lacking in the 2023 amendments to CEPA. Unfortunately, a remedy-based approach to rights also appeared to be a bridge too far for five-sixths of the members of Parliament who voted against Bill C-219.
Bill C-219 was the fifth time a federal environmental rights bill had been proposed in Parliament. The first four had been introduced by former Alberta MP, Linda Duncan. In this sense, Mr. Cannings bill was maintaining a tradition that has been going on for a decade or more. Perhaps, the sixth time will be the charm.
Image courtesy of @doidam10 via Canva.com
Blog: Parliament Rejects Private Member’s Bill That Would Have Expanded Federal Environmental Rights
By Joseph Castrilli
A private member’s bill that would have enshrined recognition of a right to a healthy environment in most federal environmental legislation was defeated by a 5:1 margin in Parliament in the first week of December 2023.
Bill C-219, the Canadian Environmental Bill of Rights sponsored by British Columbia MP Richard Cannings, failed to get beyond second reading debate in the House of Commons when over 250 members of Parliament voted against it.
In addition to recognizing a right to a healthy environment in most federal environmental laws, Bill C-219 would have enhanced the ability to enforce the right. This reform alone made the bill a distinct improvement over the existing remedy provisions of the Canadian Environmental Protection Act (CEPA) that have not been used once over the last two decades due to a variety of procedural obstacles in the legislation. Ironically, CEPA was excluded from the ambit of Bill C-219 because of concurrent government amendments to CEPA that became law in June 2023 but failed to reform that law’s enforcement provisions.
During Parliamentary debate on Bill C-219 in June 2023, the Bill’s sponsor, Mr. Cannings, noted that there are environmental bills of rights in Ontario, Quebec, Yukon, the Northwest Territories and Nunavut, but until CEPA was amended in June there was no federal law that explicitly recognized the right to a healthy environment in Canada. Mr. Cannings noted that with the enactment of amendments to CEPA we now have rights to a healthy environment, but those rights are limited to the scope of CEPA, and essentially to toxins within our environment, but no usable remedy in CEPA to enforce them. It was this gap that Bill C-219 was meant to fill at least in relation to other federal environmental laws.
However, Bill C-219 encountered stiff opposition in the House of Commons, including concerns about: (1) federal powers overstepping into provincial jurisdiction; and (2) too much authority being granted to the courts to decide environmental policy and the scope of environmental rights.
On the first point of concern, Mr. Cannings noted that none of the rights in Bill C-219 apply to matters that are found only in provincial legislation. However, to be sure, he asked the House of Commons legal department to provide an opinion on this matter. It concluded that:
“After having reviewed the bill carefully, we are of the opinion that the main subject of the bill is not the environment. Consider that the bill would not regulate any aspect of the environment, such as water quality, air quality, species at risk or toxic substances. Rather, the bill relates to civil liberties, which may be regulated by either level of government, depending on which level of government has legislative authority over the institutions and activities to which the civil liberties apply. In the case of Bill C-219, most provisions explicitly apply to federal matters only.”
The opinion also went on to explain why three provisions, while not explicitly applying to federal matters, would be considered by any court as applying to federal matters. Accordingly, the opinion stated that no amendment to Bill C-219 would be necessary.
On the second point of concern, it is a strange right if it cannot be vindicated by a court. The preference of some Parliamentarians during second reading debate on Bill C-219 for the approach adopted in the June 2023 amendments to CEPA whereby the government will determine how the right to a healthy environment will be interpreted in the government’s implementation of the Act does not on its face create a stand-alone “right” of individuals to a healthy environment. It is a regime entirely dependent on the will of government; i.e., the opposite of a rights-based approach to the law. A right requires a remedy for individuals to invoke in an independent forum (i.e., a court) when, for whatever reasons, government will not act. Such a remedy-based right is precisely what is lacking in the 2023 amendments to CEPA. Unfortunately, a remedy-based approach to rights also appeared to be a bridge too far for five-sixths of the members of Parliament who voted against Bill C-219.
Bill C-219 was the fifth time a federal environmental rights bill had been proposed in Parliament. The first four had been introduced by former Alberta MP, Linda Duncan. In this sense, Mr. Cannings bill was maintaining a tradition that has been going on for a decade or more. Perhaps, the sixth time will be the charm.
Image courtesy of @doidam10 via Canva.com
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