Blog: The Fight for Environmental Rights in 2023

Richard Lindgren, CELA Counsel

In July 2022, the United Nations General Assembly passed a landmark resolution declaring the human right to a “clean, healthy and sustainable environment.” Canada was among the 161 countries that voted in favour of this resolution, and no countries voted against it.

However, since the resolution is not legally binding or enforceable, United Nations officials have called upon governments to pass or amend legislation and policies to implement this important commitment to present and future generations.

At present, there are various rights-based initiatives under consideration in Canada that are aimed at safeguarding the environment, enhancing legal accountability mechanisms, and ensuring access to environmental justice. This blog summarizes three noteworthy and promising developments that are underway at the federal and Ontario levels at the current time.

  • Bill C-226: National Strategy Respecting Environmental Racism and Environmental Justice Act

This is a private member’s bill that was introduced in Parliament in February 2022 by MP Elizabeth May. If enacted, Bill C-226 would require the federal Environment Minister to publicly develop and report upon a “national strategy to promote efforts across Canada to advance environmental justice and to assess, prevent, and address environmental racism.”

This national strategy must include a study that examines: (a) the link between race, socio-economic status, and environmental risk; (b) information and statistics on the location of environmental hazards; and (c) measures to advance environmental justice and address environmental racism (e.g., changes to federal laws, policies or programs; involvement of community groups in policy-making; compensation to individuals or communities; and collection of information about health outcomes in communities located near environmental hazards).

Bill C-226 is currently awaiting Third Reading, and CELA and other groups have jointly urged Parliament to expedite the enactment of Bill 226.

  • Bill C-219: Canadian Environmental Bill of Rights

This is a private member’s bill that was introduced in Parliament in December 2021 by MP Richard Cannings. If enacted, Part 1 of Bill C-219 would: (a) entrench new and emerging environmental law principles (e.g., precautionary principle, polluter pays principle, intergenerational equity, environmental justice, etc.); and (b) provide Canadian residents with statutory rights to “a healthy and ecologically balanced environment,” access to information, public participation in federal environmental decision-making, and access to the courts for environmental protection purposes.

Similarly, Parts 2 and 3 would enable Canadian residents to file requests for investigation of alleged environmental offences under federal law and to commence an “environmental protection action” in any court of competent jurisdiction if the requested investigation was not conducted by the responsible ministry in a timely or reasonable manner.

Bill C-219 is currently awaiting Second Reading, and CELA requests Parliament to debate, review, and pass Bill C-219 at the earliest opportunity. In our view, the Bill’s proposed environmental rights and legal accountability tools are preferable to the weak provisions being advanced by the federal government in the Bill S-5 amendments to the Canadian Environmental Protection Act, 1999.

  • Law Commission of Ontario: Consultation Paper on Ontario’s Environmental Bill of Rights

The independent Law Commission of Ontario has recently solicited public comments on its consultation paper that focuses on the province’s 30 year-old Environmental Bill of Rights, 1993 (EBR). Among other things, the Law Commission’s paper questions whether (and how) the EBR should be updated to establish the substantive right to a healthful environment, increase public access to the courts, recognize “rights of nature,” and incorporate the public trust doctrine to govern the Ontario government’s management of public resources.

In response to the consultation paper, CELA filed a detailed brief that outlines the statutory, regulatory, policy, and administrative reforms that are necessary to strengthen and improve the EBR regime. It is anticipated that the Law Commission’s final report and recommendations may be released by the spring of 2023.

In conclusion, CELA has advocated the enactment of effective, equitable, and enforceable environmental rights since the 1970s. Depending on the outcome of the Law Commission’s EBR review and the two above-noted private members’ bills, CELA remains hopeful that further progress may be made in 2023 to achieve this decades-old objective.